Parker v R

1. [1]

   DAVIES J: At a trial commencing 6 June 2019 before her Honour Judge Wells SC and a jury of 12, the applicant was arraigned on the following charges:

2. [2]

   On 20 June 2019 the jury returned verdicts of guilty to all of the counts charged.

3. [3]

   On 17 December 2019 the applicant was sentenced by Judge Wells SC to an aggregate sentence of imprisonment of ten years commencing 15 November 2018 and expiring 14 November 2028 with a non-parole period of six years and six months expiring 14 May 2025.

4. [4]

   The indicative sentences were as follows:

5. [5]

   The applicant now seeks leave to appeal against his conviction and sentence on the following grounds:

Background

1. [6]

   On 12 September 2014 the applicant and his wife Renee Parker, who had been foster carers since 2009, were registered as foster carers with an organisation known as Child and Adolescent Specialist Programs and Accommodation (CASPA). On 13 July 2015 the complainant (“C”) and his sister T were placed in the care of the Parkers. At the time, C was aged 11 years and T was aged 12 years. C remained in this placement until 7 November 2016.

2. [7]

   On 7 November 2016 the Parkers were deauthorised as foster carers with CASPA. C and T were removed from their care for reasons not relevant to the issues at the trial. These reasons did not concern allegations of impropriety.

3. [8]

   On 21 December 2017, after the Parkers brought proceedings in NCAT, CASPA determined to reauthorise them. It was envisaged by officers from CASPA that T would return to the Parkers’ care immediately, and C would return over a transition period.

4. [9]

   In late 2017, C came to understand through his then foster carer, Victoria Rydstrand, that the applicant had refused to have T return to live with them.

5. [10]

   Sometime around 9 January 2018, C sent the applicant an abusive Instagram message where he accused the applicant of declining to want T back with them. It may be accepted that the message was a very angry one, and when the applicant said he did not know where the anger was coming from, C replied, “u fucking lying fag. Get out of my life”. The applicant said to C that something must have happened “for this stuff to be coming out” and C responded, “u happen ed (sic)”.

6. [11]

   On the following day C disclosed allegations of sexual impropriety on the part of the applicant to Ms Rydstrand. Ms Rydstrand took C to the police where he was interviewed on 12 January 2018. In that interview he disclosed the incidents giving rise to counts 1-11. He was reinterviewed on 5 June 2019, and provided further particulars in relation to counts 9-11.

7. [12]

   I shall refer in this judgment, without any disrespect, to Mrs Parker as Renee, and to Ms Rydstrand as Victoria, because that is what C and T called them.

The offending

1. [13]

   C said that in the first two weeks of his moving to live with the Parkers, the applicant asked C if he jerked off and if he watched porn. C was confused in his evidence about whether this conversation took place in his own bedroom or in the applicant’s bedroom, and whether Renee was in the room at the time.

2. [14]

   He said that about one month after the commencement of his placement with the Parkers, the applicant suggested they watch pornography, and invited C into his room (count 1). C went into the applicant’s bedroom and the applicant undressed himself and C. Renee and T were not at home.

3. [15]

   They got into bed, the applicant hooked up the tablet computer to the television, they watched pornography and the applicant masturbated (count 2). The applicant reached over to stroke C’s penis (count 3).

4. [16]

   C said that the applicant asked him:

5. [17]

   C gave evidence that “It happened multiple times. Basically like the same thing”, it happened “I think more than five times”. When questioned by police concerning the allegation of regular interference, C said “The rest is basically the same as the first time”. No further detail was given of this context evidence.

6. [18]

   Sometime in 2016, C was seated on the couch in the loungeroom watching television. Renee and T were in their respective bedrooms. It was around 8pm, and C was dressed in his pyjamas. the applicant started fondling C’s penis, causing it to become erect (count 7), and the applicant then performed oral sex on him (count 8). The applicant also twirled C’s nipples. They were both on the couch at the time. The applicant stopped when Renee was heard coming towards the loungeroom. C was 12 years of age at the time.

7. [19]

   On another occasion C alleged the applicant told him to “put on some porn”. C said he himself hooked up the tablet to the TV, went to the internet and searched for the pornography (count 9). This occurred in the applicant’s bedroom. The applicant used his hand to masturbate C (count 10), which stopped while C searched for the pornography. After the pornography was playing on the TV, the applicant again masturbated C until he ejaculated (count 11). Immediately afterwards, C returned to his room. He was aged 12 years at the time.

Ground 1 The verdicts in respect of each count are unreasonable.

1. [20]

   It is sufficient, at this stage, to refer briefly to the other witnesses and their evidence relevant to the matters put forward in support of this ground.

2. [21]

   Evidence was given by C’s sister, T. She was 16 months older than C. She gave evidence that C was happy when he lived with the Parkers and, as a result, she said at the time of her police interview that she was confused about what had happened. She confirmed evidence that she was taken to dancing lessons by Renee. She said she had never seen the applicant and C watching television together in the evening or night in the lounge room. She said C talked about sex from time to time and said he would always be watching porn.

3. [22]

   Evidence was given by Victoria Rydstrand concerning C and T coming to live with her, and about C’s complaint about what he said the applicant had done to him whilst C lived at the Parkers’ residence. Victoria also gave evidence about an incident in her car when she was driving C and T, as a result of which it was asserted that C had made an allegation that she had threatened to swerve off the road if they did not stop arguing in the car.

4. [23]

   Evidence was also given by a number of persons who had been case workers or above at CASPA in relation to C and T.

5. [24]

   The applicant gave evidence. He denied that there had been any sexual activity between him and C. He denied that he had ever shown C pornography.

6. [25]

   He gave evidence of an incident which he said occurred a couple of weeks before 4 August 2016. That date was significant, because there was an exchange on Facebook between C and the applicant on that day, when the applicant and his wife were driving back home from Lismore. The applicant also gave evidence about the exchange on Facebook. I will discuss this evidence later in the judgment.

7. [26]

   On the day, about two weeks prior to 4 August, the applicant said that he went into C’s bedroom to check that his bed had been made, and he stepped in a substance on the floor which, he thought was semen. When C returned from school, the applicant asked him if he had spilt anything on the floor. The applicant said C was a bit sheepish about answering the question. The applicant said to him that he could do “pretty much whatever you like in your bedroom as long as you clean up after yourself”.

8. [27]

   The applicant gave evidence that, after C left their care, he and his wife found two pairs of her underwear and a bra in a black bag belonging to C under his bed.

9. [28]

   The applicant gave evidence that prior to C and T coming into their care, they had fostered a number of other boys aged between about 11 and 15 years. One of those persons gave evidence that he had been in their care for some five years from 2010 to 2015. Whilst he lived with the applicant and his wife another the boy was also living there. He spoke positively about the applicant and his wife. He stayed in touch with them after he left their care and, in about December 2017, he returned to live them for a short time.

10. [29]

    The applicant called a number of witnesses to give evidence about his good character.

11. [30]

    The applicant’s wife, Renee, gave evidence. She confirmed that she took T to dancing lessons for about an hour once a week. She gave evidence corroborating the applicant’s evidence, about finding some items of her underwear in C’s backpack which they found under his bed after he left their care. She gave evidence that she did not know anything about the Facebook exchange on 4 August 2016 until after the applicant was charged.

12. [31]

    Ms Francis of counsel for the applicant put forward a number of matters in the evidence to submit that there was such unreliability about C’s evidence that the jury ought to have had a reasonable doubt about the applicant’s guilt.

13. [32]

    First, Ms Francis submitted that the evidence demonstrated that ever since C ceased to be in the care of the Parkers, he demonstrated in his various communications with the applicant his desire to return to live with the Parkers, and his desire for T to live with them. This, Ms Francis submitted, was entirely inconsistent with any suggestion that he had been “molested” as he had asserted both to T and to Victoria.

14. [33]

    Secondly, Ms Francis submitted that C had a motive to invent the allegations, because he had been told by Victoria that the Parkers had declined to have T return to live with them, at a time when T was in residential care and was anxious to return to live with the Parkers. In a heated exchange with the applicant, C had accused him of lying when the applicant said that they had not declined to take T back with them.

15. [34]

    Thirdly, Ms Francis submitted that C had had ample opportunity to complain to a number of persons much earlier than the complaint to Victoria in early January 2018. She pointed to the regular contact the caseworkers had with C, and C’s statements to them that he was happy in the placement with the Parkers.

16. [35]

    Fourthly, Ms Francis pointed to the absence of any evidence from C about any physical characteristics of the applicant when he was naked. In addition, Ms Francis pointed to the lack of any evidence from downloads from phones, laptops or iPads to corroborate the assertion that pornography had been watched by C and the applicant.

17. [36]

    Fifthly, Ms Francis submitted that C was an unreliable witness because of the evidence of false complaint to CASPA about Victoria. This related to C’s allegation that Victoria had threatened to swerve off the road if C and T did not stop arguing in the car.

18. [37]

    Sixthly, Ms Francis submitted that C’s evidence was generally unreliable. Examples were his vacillating evidence about where the conversation mentioned at [13] above took place, and whether Renee was present; who removed his clothes at the time of the first sexual encounter; and whether the applicant and his wife left a sniper rifle in the wardrobe.

19. [38]

    Finally, Ms Francis pointed to failures on the part of the trial judge in her summing up to the jury including, she submitted, that the trial judge did not put the applicant’s case to the jury. She submitted that at one point in the trial judge’s summing up, when dealing with the Facebook exchanges on 4 August 2016, her Honour invited the jury to draw an adverse inference against the applicant, to which defence counsel had no opportunity to respond.

20. [39]

    The principles to be employed in considering a ground asserting an unreasonable verdict are well-known from a series of High Court cases including M v The Queen (1994) 181 CLR 487; [1994] HCA 63; R v Nguyen [2010] HCA 38; (2010) 85 ALJR 8 and SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13.

21. [40]

    It is sufficient to note, first, what was said by the High Court in The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35 at [65]-[66]:

22. [41]

    In Pell v The Queen [2020] HCA 12; (2020) 376 ALR 478, the High Court said:

23. [42]

    It may be taken from the jury’s verdicts that the applicant’s denials of the sexual interactions between him and C were not believed. The question is whether the applicant’s evidence of what occurred, when considered with all of the other evidence in the trial, was such that it was open to the jury to be satisfied beyond reasonable doubt that the applicant was guilty. The trial judge told the jury that if they did not believe the applicant, that did not lead to the conclusion that the applicant was guilty. They had to be satisfied beyond reasonable doubt that C was both an honest and accurate witness to find the applicant guilty.

24. [43]

    It should be acknowledged at the outset that some of the evidence given by C was not without its problems, in terms of inconsistency and some contradictions which, at first blush, might be difficult to understand. A reading of the whole of the transcript, and the two police interviews presents an angry, and at times, immature young man who was conflicted about a number of matters, including his concern for his sister T (with whom he appeared to have a rather complicated relationship), the obvious benefits he had received from living with the Parkers and subsequently with Victoria, his desire to live in certain places because of the material benefits to him (eg. whether he had a computer, or could play his guitar and have music lessons) and, perhaps, the growing realisation as he matured that the sexual engagement with the applicant which he said he liked to some extent, was wrong and inappropriate, and that he had been used or exploited. None of this is to be critical of C.

25. [44]

    What the jury saw was a 15 year old boy who was trying to recall events some three and four years earlier, and who was trying to explain what in an adult would be seen as illogical behaviour (his indecision between wanting to go back to the Parkers and wanting to remain with Victoria) that might cast doubt on his honesty or reliability. He may well have given some unsatisfactory evidence about such things as who took his clothes off prior to the first sexual encounter with the applicant; in which room the conversation took place where the applicant was said to have asked him about masturbation, and whether Renee was present; and whether he had seen a sniper rifle in the wardrobe. It is trite, however, to say that regard must be had to all of the evidence. The jury were entitled to accept some but not all of C’s evidence, and if they did not accept part of a witness’s evidence that did not mean they had to reject the remainder of it, as the trial judge told them.

26. [45]

    It is necessary to examine the specific matters raised to consider if, when considered together and with the other evidence in the case, they result in a conclusion that the jury ought to have had a doubt about the applicant’s guilt.

27. [46]

    The evidence of the electronic messaging shows that there was reasonably frequent contact between C and the applicant in the months following his departure from their place. However, the contact became less frequent throughout 2017, but it is fair to say that the messaging indicates an ongoing good relationship between C and the applicant and, up to May 2017, C was telling the applicant that he wished to move back with the Parkers.

28. [47]

    C was taken to these messages in cross-examination. He agreed that he did want to go back to the Parkers. The message after May 2017 was on 6 September 2017 where the applicant said, “Kiddo, haven’t heard from you in ages.” It seems C did not reply because there were more messages from the applicant on 7 and 12 September, and then C replied on 13 September. C disclosed, when asked in cross-examination, that by that time things were going well where he was living with Victoria at Pottsville, and at school where he was making some friends, and he did not want to go back to the Parkers.

29. [48]

    On 22 December 2017, C asked the applicant if he was going to spend Christmas with C and his grandparents. C agreed, in his evidence in chief, that in December 2017 he still wanted to go back to the Parkers, and that T strongly wanted to go back there. It was clear that he was still torn between his desire to return to the Parkers, and his desire to remain with Victoria because he was settled and happy there. Victoria gave evidence that she considered that C felt a sense of loyalty to the Parkers.

30. [49]

    C admitted that his attitude changed when Victoria told him that T had been declined by the Parkers from going back to them. He said he was really angry at what the applicant had done by declining T, and he then told Victoria about what he said had happened when he was living with the Parkers.

31. [50]

    He said that he decided that he preferred to stay at Victoria’s around his birthday, which was 1 January 2018. The evidence showed that matters such as whether he would have a computer in the place he was staying, or whether he would miss out on music lessons, were factors that made him undecided about where he wanted to live.

32. [51]

    The evidence also makes clear that C was still very anxious for T to go back to live with the Parkers, notwithstanding that he disclosed to Victoria that he had been sexually assaulted by the applicant. Although it was submitted that his desire for T to return to live with the Parkers was inconsistent with his having been sexually interfered with, two other matters helped to put that into context. The first was that, in C’s mind, T was desperately unhappy living in residential care, and was very anxious herself to return to live with the Parkers. Although it was her complaint about Renee that resulted in her removal first, and then subsequently C’s removal, it seems that she realised that things were better with the Parkers than living in residential care. C was very aware of her unhappiness and wanted her to be able to go back to the Parkers, because that was her desire.

33. [52]

    The second matter is that the evidence tended to show that C did not think that T was in any danger living at the Parkers because the applicant was only interested in him as a boy, and, as he said, “loved him”. This is clear from the evidence of Victoria where she said:

34. [53]

    In relation to the suggestion that the sexual allegations were made up by C because of his anger towards the applicant over declining T’s return, it is important to set out the last communication between C and the applicant before C made his disclosure to Victoria. The precise date of the communication is not known but it must have been subsequent to 30 December and prior to the disclosure to Victoria on 8 or 9 January 2018. The communication was as follows (in respect of this and all messaging through Facebook and other channels, the format, syntax, grammar and spelling are as in the original):

35. [54]

    When the applicant challenged C about the anger that he was displaying, C said, “u fucking lying fag”, and when the applicant again expressed surprise about the anger, saying “Something has happened for this stuff to be coming out”, C replied, “u happen ed”. Both of those comments are consistent with the allegations subsequently made by C, and tend to diminish the idea that, after this interaction, C decided to invent a story involving the applicant having sexually assaulted him.

36. [55]

    What is said there is also entirely consistent with a conversation C had with T at about that time, where T was challenging him about his belief that the Parkers had declined to have her back to live with them. The conversation was, relevantly, this:

37. [56]

    In relation to the submission that doubt should be cast on C’s evidence because he failed to make a complaint at an earlier time to case workers and others, the reluctance of many victims of sexual assault, and particularly children, to report such assaults is now very well known. The reluctance may be because they feel responsible for what has happened, and that they will be in trouble if it is known. In this case, C would have understood clearly that no-one else should know about what had occurred. Both in relation to the incident on the lounge in the living room, and for the second incident in the bedroom, the applicant quickly stopped any activity when his wife was heard or seen to be approaching. C also gave evidence that the applicant said to him that he was not to tell anyone, especially his wife.

38. [57]

    In any event, C was an 11 and 12 year old boy when these alleged assaults took place. He had obviously come from a troubled background, and all of the evidence suggests that he was a volatile and angry young man. There can be no doubt from the evidence that, putting the sexual assaults aside, the Parkers provided a stable home environment for C and T which they seemingly had not previously experienced to the same extent or at all. C’s comment to T in the exchange referred to above that he wasn’t thinking straight before that time probably encapsulates the issue.

39. [58]

    Further, what emerged in the second police interview was that the sexual experiences were, in any event, not unpleasant for him at the time, and that can scarcely be thought to be surprising for a boy who was entering puberty. What he said to the police was this:

40. [59]

    In that regard, the evidence of Victoria showed a developing awareness on the part of C that what had taken place was not right. She gave this evidence about the conversation C had with her on 10 January 2018:

41. [60]

    Coupled with that, was the evidence already referred to, that C thought that Daniel had loved him.

42. [61]

    There was no doubt that the events at the beginning of 2018 were a turning point for C. As a result of what Victoria had told him about the Parkers declining T, he came to believe that the applicant had lied to him. It is not hard to infer that he began to re-appraise the good relationship he had previously had with the applicant. The Crown addressed the jury about this when he said:

43. [62]

    Victoria’s evidence (above) is of a person starting to develop from a child into a young man. That is apparent from another aspect of C’s anger at this time, about which Victoria gave this evidence:

44. [63]

    It is apparent from what C told Victoria, that some pet name that C was happy to be called as a child was now repulsive to him, when C has reconsidered his relationship with the applicant. It was open to the jury to consider that his anger about that was a manifestation of what Victoria is talking about in the conversation set out at [59] above.

45. [64]

    There is another matter relevant to whether these allegations were falsely made. C gave evidence that he and the applicant went to Sydney to a Dr Who convention. They slept in the same bed, but he said that nothing happened because they couldn’t get the internet to work. C conveyed this information to Victoria also, who confirmed his evidence in that regard. If C was making up his evidence, the most likely allegation would be that something did happen when they slept together in a hotel in Sydney, away from T and Renee. C’s evidence that nothing happened on that occasion gives a ring of truth to the allegations that he did make.

46. [65]

    The final matter concerning the lack of earlier complaint comes from the evidence of the case worker for C and T, Marie Hainaut. Her evidence was that whenever she spoke to the children at the house, she was not alone with them (contrary to the evidence of the applicant), and when she took them out of the house to spend time alone with them C and T were always together.

47. [66]

    In my opinion, the absence of any earlier complaint from C about what had occurred does not in any way diminish the force or reliability of his evidence.

48. [67]

    Reliance was placed on what was said to be a false complaint made by C to CASPA about Victoria. The case worker for C and T, Ms Hainuat, received a notification on about 19 January 2017 that C and T had made a complaint about Victoria. Ms Hainaut approached Victoria about the matter and made the following notes:

49. [68]

    When Ms Hainaut spoke to Victoria she said that the young people, “had been very loud, rowdy, swearing and making rude comments”. At some point Ms Hainaut went back and spoke to C, and noted in the report, “they refused to hear the alternative explanation and maintained she had threatened them and they wanted out”.

50. [69]

    This incident was put to Victoria in cross-examination, and in the course of that, she was asked whether she threatened to swerve the car off the road. She denied it and said that she had said, “I’m trying to concentrate”.

51. [70]

    However, it was never put to C that he asserted that Victoria had threatened to swerve the car off the road or that that was untrue. What C was asked about the incident was this:

52. [71]

    According to Ms Hainaut’s note, it was T who said that Victoria had threatened them. C was reported by Ms Hainaut as saying that Victoria said she would swerve off the road. Victoria may have said that she would swerve off the road if they did not stop their behaviour, but given that she told them she was trying to concentrate she may well have said that their behaviour might cause her to swerve off the road if she had to give attention to them rather than the traffic and the road.

53. [72]

    It is to C’s credit that he admitted all of the matters put to him despite their demonstrating bad behaviour on his part, but when it was never put to him that he had said that Victoria said she would swerve off the road, or that she threatened to swerve off the road, there is no basis for concluding that this was a false complaint about Victoria by C.

54. [73]

    The absence of evidence concerning any description that C might give of the applicant when unclothed, and the absence of evidence of downloads from electronic equipment does not take the matter very far. Whilst clearly the applicant had no onus or obligation to cross-examine C about matters pertaining to his (the applicant’s) appearance, it may be that there was nothing to see in that regard. The matter is entirely speculative about whether the applicant had any unusual physical appearance which it might have been expected that C would give evidence of it.

55. [74]

    As for the electronic equipment, the offending was said to have taken place in 2015 and 2016, and the search warrant was not executed until January 2018. Whether the electronic equipment was the same was not disclosed. Again, the absence of the evidence does not take the matter anywhere. In any event, the applicant admitted that he had watched pornography on his iPad.

56. [75]

    The evidence of C received support from certain small matters in the evidence and also from a very significant matter. The small matters concerned the timing of events and the possibility that some of the events took place as C described. There was evidence from T and Renee about T’s regular dance lessons once a week and subsequently more often, when both T and Renee would be out of the house.

57. [76]

    There was evidence from both the applicant and Renee that there were occasions when the applicant and C watched television alone in the loungeroom. Indeed, the applicant confirmed C’s evidence that on the occasions concerned each of T and Renee were in their bedrooms. The applicant also confirmed that on those occasions C was wearing only pyjama bottoms and no pyjama top and said that the doors to both T’s room and his wife’s room were open. As noted above, he also agreed, as C had asserted, that there were occasions when he watched pornography on his iPad and played it through the television.

58. [77]

    However, the most significant aspect of the evidence that tended to corroborate C’s allegations that some form of sexual activity had taken place between C and the applicant was the conversation C had with the applicant when the applicant and his wife were in the car returning home from Lismore on 4 August 2016 (“the 4 August conversation”).

59. [78]

    The full text of the conversation is as follows:

60. [79]

    A number of matters arise from this conversation. First, although the applicant said that he did not ever refer to the sex toy described by C in that conversation as a “plastic pussy”, the conversation shows that the applicant knew what C was speaking about. C’s evidence was that the applicant had referred to it as a pocket pussy when he first showed it to him.

61. [80]

    Secondly, the only way C could have found the device was by rummaging around in the bedroom of the applicant and his wife, and in the applicant’s bedside table. On that basis, and if the applicant had never shown this device to C previously, there is an inherent unlikelihood about this young person with his behavioural problems openly acknowledging that that was exactly what he had done.

62. [81]

    Thirdly, the jury were entitled to take the view that if there had been no prior sexual contact between the applicant and C, the applicant having responsibility as C’s carer would have said something at least to admonish C for having inappropriately invaded the applicant’s privacy in that way. Instead of that, the conversation reads as if it is between two people who knew exactly what was going on because of something which had preceded this conversation.

63. [82]

    Fourthly, the fact that the applicant was trying to ascertain from C that there was no evidence left anywhere to show that he had used it might well be regarded by the jury as an attempt by the applicant to ensure that his wife did not find out what C had done. Although this message generally was not left to the jury on a consciousness of guilt basis, the jury was entitled to draw a conclusion that something of sexual nature concerning C was being kept from her.

64. [83]

    Fifthly, the entirely inappropriate comment at the end by the applicant saying “tasty”, when C had suggested that the only evidence left was his “cum”, might also have led the jury to the view that there had been some sexual interaction between the applicant and C prior to this conversation.

65. [84]

    Finally, there is the very significant matter that the applicant did not tell his wife about this incident or that conversation at the time or even subsequently. The first time she found out about it was after the applicant had been arrested and charged. The applicant was not able to say why he did not tell his wife about it.

66. [85]

    When she was asked about the conversation, she gave this evidence:

67. [86]

    She also gave the following evidence:

68. [87]

    Renee’s evidence in that regard is also relevant to the account given by the applicant about stepping in something on the floor of C’s room which he assumed was semen, an event which C denied. The jury were entitled to take the view that if, as Renee said, what was disclosed by C in the 4 August conversation, and the issue of masturbation by a child in their care should have been reported, then both at the time of the semen on the floor incident and certainly in relation to the incident discussed in the 4 August conversation, the applicant was endeavouring to hide some aspect of his relationship with C, and that aspect of the relationship was a sexual one.

69. [88]

    The applicant said that he could not explain why he did not tell his wife about the conversation. He said he wasn’t concerned about C using the sex toy, but he was concerned about him going into their personal space. Yet he said nothing at the time. Rather he gave evidence of a conversation he said that he had with C after he arrived home. When asked why he said nothing at the time, he said he could have responded to C in “a thousand different ways but I didn’t”. If the conversation at home was only about going into the applicant’s and his wife’s personal space, it is difficult to understand why the conversation did not involve his wife. She knew of the sex toy that C had used. Again, the jury were entitled to infer that there was a reason the applicant was keeping the whole matter from her.

70. [89]

    It is also very difficult to reconcile the way the applicant responded to C in the 4 August conversation, in the light of other evidence he gave. He was asked, in the context of his evidence of stepping in the sticky substance on C’s bedroom floor:

71. [90]

    If conversations about “sexual behaviour and items such as that” should be referred to a case worker or a doctor, that only highlights the inconsistency between that evidence and the 4 August conversation. It may well have strengthened the jury’s view that the applicant was not telling the truth, and that the 4 August conversation tended to corroborate C’s claims about prior sexual involvement between him and the applicant.

72. [91]

    If the conversation concerning the sticky substance on the floor occurred, as the applicant asserts, there was a significantly different reaction by C at that time, from the very open way he talked about sexual matters in the 4 August conversation. One very obvious explanation for that is that sexual interaction had occurred between C and the applicant, as C asserted, and that C had thereby been sexualised.

73. [92]

    In connection with the 4 August conversation, the jury were entitled to reject the applicant’s evidence that he did not refer to the sexual device as a pocket pussy or a plastic pussy but, rather, as a flesh light, because he considered that it was like a sexual device known as a flesh light. Photographs of the sexual device said to have been used by C were before the jury, as were photographs of a flesh light. The jury was entitled to take the view that the devices were not alike and to reject the evidence of the applicant that he referred to the device as a flesh light, particularly in the light of his understanding from the message in the car of what a plastic pussy was.

74. [93]

    One of the complaints made by Ms Francis of the Judge’s directions to the jury was that her Honour had invited the jury to draw an adverse inference against the applicant when she said:

75. [94]

    In my opinion, there was nothing inappropriate or unfair about what the Judge said to the jury at that point. The Crown had made much in his closing address of the fact that the applicant did not admonish T for having snooped around in his room, but rather treated the matter as if it was a joke between them. At one point the Crown said:

76. [95]

    There is no ground of appeal challenging anything said by the Judge in her summing up and, when the Judge concluded her summing up and asked counsel if anything arose, neither counsel raised any matter.

77. [96]

    Ms Francis also complained that the trial Judge did not put the applicant’s case to the jury. It is a little difficult to understand this complaint. The applicant denied that any of the sexual activity had occurred. He did not put forward any other positive case apart from asserting his good character. The Judge dealt with that evidence, and otherwise summarised defence counsel’s address in an entirely fair manner.

78. [97]

    Having read the whole of the evidence at the trial, I am not left in any doubt that it was open to the jury to convict the applicant on all of the counts. It was a strong case where the detail given by C of what occurred added to the general feeling of the honesty and reliability of his evidence. If there was otherwise any doubt about the applicant’s guilt, that was put to rest entirely by the applicant’s behaviour in relation to the 4 August conversation.

79. [98]

    I would reject ground 1

Ground 2 The sentencing judge erred in failing to assess the objective criminality of counts 2-11.

1. [99]

   In her Remarks on Sentence (ROS), the sentencing judge said this in relation to the objective seriousness of the offences:

2. [100]

   Her Honour then went on to speak of the applicant’s good character, his prospects of rehabilitation and reoffending. Her Honour said that she would impose an aggregate sentence and went on to set out the indicative sentences first. In relation to count 1, her Honour said that there was a maximum penalty of 12 years with a standard non-parole period of five years. She said:

3. [101]

   When her Honour then identified the other counts, including the maximum penalties and standard non-parole periods, she said nothing more in relation to objective seriousness.

4. [102]

   Ms Francis submitted that, notwithstanding that counts 2-5, and 7-11 carried standard non-parole periods, the sentencing judge did not express any finding as to applicable objective seriousness when that was required. Reliance was placed on a number of cases including R v Woods [2009] NSWCCA 55, R v Knight; R v Biuvanua [2007] NSWCCA 283 and Smith v R [2009] NSWCCA 17.

5. [103]

   Ms Francis submitted that the ROS demonstrated that the sentencing judge rejected the submission by counsel for the applicant that the offending was in the low-range or below the mid-range, but she submitted that it cannot otherwise be divined from the ROS the extent or degree to which the offences departed from the notional offence in the mid-range of objective seriousness.

6. [104]

   The Crown submitted that, having regard to the ROS as a whole, the sentencing judge appropriately and adequately assessed the objective seriousness of each of the offences. The Crown submitted that this was reflected in the varying indicative sentences for each of the offences, despite the same offence covering similar conduct being charged in some instances.

7. [105]

   The Crown submitted that the specific facts in relation to each of the 11 offences were set out in the ROS including the duration of the act and, for example, whether the act continued to ejaculation, or whether it was interrupted, as in the case of counts 7 and 8.

8. [106]

   The Crown submitted that the mere fact that a label or range on a scale was not attributed to counts 2-11 did not disclose the error contended by the applicant. The Crown also noted that the sentencing judge rejected the submission by the applicant that all of the offences were in the low range, or below mid-range. The fact that count 1 was found to fall towards the lower end of the range clearly did not extend to any of the remaining counts.

9. [107]

   Care must be taken with decisions which predate Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 that deal with the need to identify where in the range of objective seriousness the offending in a matter lies.

10. [108]

    In Yeung v R [2018] NSWCCA 52 McCallum J (as her Honour then was) (Hoeben CJ at CL and Simpson JA agreeing) said:

11. [109]

    Yeung was also a case where it was asserted that the sentencing judge had failed to make a determination as to where the offence stood in terms of objective criminality. Justice McCallum said in that regard:

12. [110]

    In Yeung, the applicant relied on the remarks of Latham J in Regina v Cage [2006] NSWCCA 304 where Latham J said (with the agreement of Hunt AJA and Johnson J) that “a bare recitation of the facts constituting the offences and a reference to the ‘objective features of the offences’ does not satisfy the requirements of sentencing.” Those remarks were cited with approval in R v Van Ryn [2016] NSWCCA 1 at [133].

13. [111]

    Nevertheless, McCallum J said in Yeung at [30]:

14. [112]

    In a similar vein, Harrison J (with the concurrence of Hoeben CJ at CL and Bellew J) said in See v R [2020] NSWCCA 272:

15. [113]

    I am not satisfied that, when read as a whole, the sentencing judge in her ROS expressly or implicitly made an assessment of the objective criminality of any but the first of the offences charged. Indeed, the fact that her Honour said that count 1 fell toward the lower end of the range highlights the problem. Her Honour had earlier said that she would accept that, if regard were had to the nature of the physical acts and the duration of individual acts alone, they might fall within that lower end of the range of objective seriousness, but her Honour went on to say that regard must be had to other matters which she then detailed. These included the age of the child, the period over which the offences took place, the breach of trust and the fact that the offences happened in the home where the child was entitled to feel safe. All of those matters, apart from the period of time over which the offending took place, applied to count 1, as they also applied to the other offences. It does not appear that those aggravating factors elevated count 1 to being above the lower end of the range of objective seriousness.

16. [114]

    In those circumstances, it is difficult to see from an analysis of the factors her Honour took into account where the other offending lies in that regard. One example might suffice. Count 8 charged aggravated sexual intercourse. Such a charge covers a variety of acts including digital penetration, oral intercourse, and the situation where the victim might be the object of penile anal intercourse. What happened in the present case, where the intercourse was constituted by the applicant fellating C, although not to ejaculation, would ordinarily be regarded as of considerably less seriousness than the offence being constituted by penile anal intercourse where the perpetrator was the active partner: Ibbs v The Queen (1987) 163 CLR 447; [1987] HCA 46 at 452; R v Davis [1999] NSWCCA 15 at [66]; R v AJP [2004] NSWCCA 434 at [21]-[26]. The sentencing judge said nothing about that. In that way, it cannot be said that the aggravating factors identified by the sentencing judge, which applied to all of the offending, implicitly situated the offending in such a way that the objective seriousness could clearly be understood.

17. [115]

    In my view this ground is made out.

18. [116]

    It is not necessary, therefore, to consider the ground asserting manifest excess. However, submissions that were made in that regard are clearly relevant to the resentence exercise, and will be considered when that is undertaken.

Resentence

1. [117]

   There were three separate incidents in respect of which charges were laid. What occurred in each incident has been set out earlier in the judgment, but will be repeated briefly to give context to the findings of objective seriousness.

2. [118]

   Count 1 was the invitation by the applicant to C to come into his bedroom to watch pornography. Count 2 was the watching of pornography whilst the applicant masturbated. These offences fall towards the lower end of the range.

3. [119]

   Counts 3, 4 and 5 were indecent assaults. Count 3 involved the applicant stroking C’s penis, count 4 involved him putting lubricant on C’s penis, and count 5 involved him masturbating C with the pocket pussy. Counts 3 and 4 are below the mid-range. However, count 5 involved the applicant causing C to ejaculate. That offence is within the mid-range.

4. [120]

   Count 6 involved the applicant asking C to twirl his nipples whilst the applicant masturbated C with the pocket pussy. That is an offence towards the bottom of the range.

5. [121]

   Counts 7 and 8 deal with the offence on the lounge in the living room whilst the applicant and C were watching television. Count 7 was an indecent assault, being the fondling of C’s penis by the applicant to the point of erection. That offence was below the mid-range. Count 8 was the act of sexual intercourse. It involved the applicant sucking C’s penis. It is unclear how long the act lasted because at some point it was interrupted by Renee approaching from her room. It did not involve C ejaculating. Given the range of actions that constitute sexual intercourse, this count should be regarded as being below the mid-range.

6. [122]

   Counts 9, 10 and 11 involve the second incident in the applicant’s bedroom while he and C watched pornography. Count 9 should be regarded as towards the bottom of the range. Counts 10 and 11 involved the applicant masturbating C on two occasions. On the second occasion he did so until C ejaculated. Count 10 should be regarded as below the mid-range, but count 11 is within the mid-range.

7. [123]

   The offending was undoubtedly aggravated by the matters identified by the sentencing judge. The grooming offences show a degree of planning, but it is important that there should not be double counting in that regard.

8. [124]

   There was a serious breach of trust involved because the applicant was the foster parent of C. Care must be taken, however, because counts 2 and 8 had as an element of those offences that C was under the applicant’s authority.

9. [125]

   Two of the aggravating features mentioned in s 21A(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW) are:

10. [126]

    Not only must care be taken not to double-count the issue of trust where being under authority is an element of the offence, care must be taken not to double-count for the factors in paragraphs (k) and (l).

11. [127]

    In MRW v R [2011] NSWCCA 260, the offender was the father of the complainant who was then aged ten years and two months. One of the grounds of appeal was that the sentencing judge had found an aggravating factor in terms of s 21A(2)(k) when it was an element of the offence that the victim was under the authority of the offender.

12. [128]

    Chief Justice Bathurst (with whom James and Johnson JJ agreed) said:

13. [129]

    In the present case, the abuse of trust derived from the applicant’s position of authority over C. Counts 2 and 8 are not aggravated by the breach of trust, but it is an aggravating factor for the other counts.

14. [130]

    Care must also be taken in relation to the issue of vulnerability where a child is young. In DH v R [2019] NSWCCA 128, the complainant was aged eight years when she was sexually assaulted by her stepfather. When considering s 21A(2)(l) the sentencing judge said:

15. [131]

    Justice Hamill (with whom Leeming JA and N Adams J agreed) said at [25]:

16. [132]

    In the present case C was vulnerable not simply because he was young. He was vulnerable because he had been in care for some time, and had been placed with the applicant and his wife precisely because he was in need of a stable home life. Although a breach of trust on the part of the applicant was involved because of his position as carer, that does not seem to me to encompass the whole of C’s vulnerability. He was more vulnerable than the position of a child or a stepchild in an established family.

17. [133]

    There was a further aggravating factor, separate from those discussed, which was that C was entitled to feel safe in the home where he was living. Whilst there is an element of cross-over between that concept and both his vulnerability and being under the applicant’s authority, there is a further element associated with feeling safe in the home not covered by those matters.

18. [134]

    In respect of all of the offences charged, C was towards the lower end of the age range specified in the offences.

19. [135]

    I accept that there was no physical violence involved or any psychological coercion.

20. [136]

    I have had regard to the psychologist’s report of Dr Ian Nisbet. I have also had regard to the character evidence given on the applicant’s behalf, both at the trial and in the material tendered at the sentence proceedings. I consider that the applicant has good prospects of rehabilitation, subject only to the fact that he has not accepted responsibility for what he did. I consider that his prospects of re-offending are low based on Dr Nisbet’s report.

21. [137]

    Both general and specific deterrence are significant considerations for offences of this type.

22. [138]

    I propose the following indicative sentences:

23. [139]

    The offending consisted of three discrete incidents. That results in some notional accumulation. There needs to be a reasonable amount of notional concurrency with the offences charged in incident 1, with counts 3, 4 and 5, and probably 6, taking place in a continuous fashion.

24. [140]

    I propose that the applicant be sentenced to nine years’ imprisonment with a non-parole period of five years and nine months.

Conclusion

1. [141]

   Accordingly, I propose the following orders:

2. [142]

   HAMILL J: I have had the considerable benefit of reading the draft judgment of the presiding Judge. I agree with the orders that his Honour proposes and with the reasons contained in the judgment.

3. [143]

   Having considered the whole of the evidence, and the persuasive submissions of counsel for the applicant, I am comfortably satisfied that it was open to the jury - in the sense discussed by the High Court in cases such as M v The Queen, SKA v The Queen and Pell v The Queen - to be satisfied beyond reasonable doubt of the applicant's guilt in relation to each of the charges on the indictment.

4. [144]

   In particular, the exchange of messages on 4 August 2016 between the applicant and the complainant concerning the so called "plastic pussy" (discussed by Davies J at [77]-[90]) was potentially devastating evidence against the applicant. It had the capacity to undermine the otherwise strong evidence of good character and to establish the nature of the relationship between the applicant and his foster son. The "conversation" placed the allegations in a context that made it far more likely that the accusations made by the complainant were truthful, accurate and reliable. The applicant's explanations and justifications for the conversations were unconvincing and the failure to discuss the matter with his wife made any innocent explanation implausible.

5. [145]

   While the evidence of the complainant contained some inconsistencies and weaknesses, highlighted by counsel on the appeal, these were understandable for the reasons given by Davies J. The evolution of the relationship between the complainant and the applicant, set out by Davies J at [51] - [63], places the shifting attitudes and behaviour of the complainant towards the applicant and the prospect of continued placement in his care, into a context which can easily be understood. Accordingly, any questions arising from the complainant's evidence do not cause me to entertain a reasonable doubt as to the applicant's guilt or to conclude that the jury ought to have entertained such a doubt.

6. [146]

   I agree with Davies J that the sentencing Judge erred in failing to make separate findings as to the objective seriousness of the various offences and that the sentencing proceedings miscarried as a result. I agree that the appeal against sentence should be allowed upon the grant of leave and that the sentence imposed in the District Court must be quashed. I also agree with the indicative sentences for each count and with the aggregate sentence proposed by Davies J.

7. [147]

   WILSON J: I have had the advantage of reading the judgment of Davies J in draft.

8. [148]

   With respect to ground 1, I agree with his Honour's conclusions. Like him, I regard the Crown case against the applicant at trial as having been a compelling one. The evidence of the complainant was - patently in my conclusion - both honest and reliable, and the jury was entitled to act upon it. Having reviewed the evidence that was before the jury, I am satisfied that it was open to it to be satisfied of the applicant's guilt to the criminal standard. The appeal against conviction should be dismissed.

9. [149]

   Unlike Davies J, I would, respectfully, also dismiss the appeal against sentence.

10. [150]

    I am not persuaded that her Honour failed to assess the objective gravity of the offences for which the applicant faced sentence. The sentencing judge - a very experienced criminal lawyer and jurist - well understood the court's obligation to make that assessment, and she specifically referred to it. She set out in careful detail in her remarks on sentence all of the facts and circumstances relevant to the assessment that she made including, the nature of each of the acts reflected by the offences before the court; the level of grooming conduct that the applicant engaged in to make the commission of his crimes possible, the vulnerability of the complainant to sexual predation by the applicant, who was in a position of trust, and authority over him; and the great age disparity between the complainant and the applicant.

11. [151]

    That her Honour did not engage in an exercise of assigning an individual label, or place in a range of seriousness to each count, does not denote a failure to make the assessment required of the sentencing court. As I said, with the concurrence of R A Hulme J and Hamill J, in FL v R [2020] NSWCCA 114, at [59] - [60]:

12. [152]

    Davies J has already referred to Yeung v R at [30] in which the point is also made.

13. [153]

    In my view, her Honour was under no mistake as to her obligation to assess the gravity of each offence and, taking into account the whole of her remarks, and noting both the individual indicative sentences announced, and the aggregate sentence imposed, it is clear to me that she fulfilled that obligation. I would dismiss this ground.

14. [154]

    Since my judgment is the minority, there is no utility in fully considering ground 3, other than to observe that, bearing in mind the gravity of the applicant's offences, inclusive of the grave breach of trust that each involved, and the likely enduring damage done, there is in my view nothing unreasonable or unjust about the sentence imposed in the District Court. I would also dismiss ground 3.