BS v R

1. [1]

   HOEBEN CJ AT CL: I agree with Davies J and the orders which he proposes.

2. [2]

   DAVIES J: The applicant was charged with the following offences:

3. [3]

   Counts 1 to 4 concerned the first complainant known as T. Count 5 referred to the second complainant known as Y.

4. [4]

   Counts 1, 2 and 5 involved kissing the complainant in each case with his tongue. Count 3 involved digital penetration, with the alternative offence (Count 4) being rubbing the outside of the complainant’s vagina.

5. [5]

   The applicant pleaded not guilty and stood trial before Judge Pickering SC and a jury of twelve. The jury returned guilty verdicts in respect of Counts 1, 2, 3 and 5.

6. [6]

   On 15 August 2019 the applicant was sentenced by Judge Pickering to an aggregate sentence of five years six months commencing 21 June 2018 and expiring 20 December 2023 with a non-parole period of three years expiring 20 June 2021.

7. [7]

   The indicative sentences of imprisonment were as follows:

8. [8]

   The applicant now appeals against his conviction and seeks leave to appeal against his sentence on three grounds:

The offending

1. [9]

   A summary of the evidence is as follows.

2. [10]

   The complainants, T and Y, are the grandnieces of the applicant. The complainants’ father is the nephew of the applicant’s wife. At the time of the offending in January 2016, T was seven years old, Y was 12 years old, and the applicant was aged 72 years.

3. [11]

   The complainants lived in Queensland with their mother and younger brother. Their father, who had separated from their mother, was also living in Queensland. They were on good terms despite the separation.

4. [12]

   On 1 January 2016 the complainants’ mother and father drove T, Y and their younger brother to Sydney. On 3 January their father called the applicant’s wife, (his aunt) and arranged for the family to visit the applicant and his wife at their home the following day. The family arrived at the applicant’s home some time between 11 and 11.30am, and stayed until the afternoon.

5. [13]

   At some stage during the morning of the family visit, T asked her mother for a glass of water. The applicant offered to get T a glass of water, and the complainants’ mother told T to go with the applicant. T went with the applicant to the garage area, which was attached to the house and down the hallway where there was a sofa, a television, a lounge and a fridge. The Crown case was that the applicant sat on the couch, grabbed T by the wrist, pulled her towards him, and held her where she was standing. He then kissed T on the mouth, and put his tongue in her mouth so that their tongues were touching (Count 1).

6. [14]

   The complainants’ mother noticed that T had not returned and called out for her. The applicant stopped kissing T when her mother called out. T pushed the applicant away and ran off, returning to the living area, and the applicant followed. The complainants’ mother noticed that when T returned she was not herself and appeared upset.

7. [15]

   After a late lunch, T went to the toilet which was down the hallway. T was approached by the applicant whilst washing her hands. The applicant whispered to T to come to his bedroom, and she followed him. The applicant sat on the bed and T stood in front of him. The applicant kissed T, again putting his tongue in her mouth (Count 2).

8. [16]

   The applicant then turned her around so that T’s back was facing him. She first attempted to distract him by speaking about something in the room, and then she tried to walk away, but he lifted her dress and put his hands inside her underpants and put a finger inside her vagina (Count 3). T later told police that the degree of penetration was “a little, just like that part here, but that part there” gesturing to her fingernail. T then went back to the living room where her parents were sitting.

9. [17]

   As the complainants’ family was leaving, Y was told by her parents to kiss the applicant goodbye. Y offered the applicant her right cheek for him to kiss, but he grabbed her by both sides of her face, kissed her on the lips, and put his tongue into her mouth (Count 5). The kiss lasted for a couple of seconds. Both of the parents saw the kiss, but did not see that the applicant’s tongue went into Y’s mouth.

10. [18]

    In the car afterwards, the complainants’ mother asked Y about the kiss, and she described it as “very, very yucky”. T then said, “He kissed me as well and he put his tongue in my mouth”. The complainants’ parents then drove to a friend’s house where they were visiting other friends. When they arrived, the complainants’ parents took T into a separate room and asked her what had happened. T repeated that the applicant had put his tongue in her mouth, and also disclosed that the applicant had touched her on the “hanona” (T’s word for her vagina). T was distressed at this time.

11. [19]

    The complainants’ parents’ reported the allegation to police. T was interviewed on 6 January 2016, but Y was not interviewed until June 2017.

12. [20]

    The applicant was arrested on 6 January 2016. After his arrest he participated in a recorded interview in which he denied having kissed or touched T at all on the day. The applicant did not give evidence at the trial. However, the applicant’s daughter, R, gave evidence in the defence case. She said that she had attended the family lunch. R said that during the lunch T had asked for a glass of water, and she went with T and the applicant to the garage to get a glass of water. She saw the applicant get a glass of water out of the fridge. She did not hear the complainants’ mother call out.

13. [21]

    R said that the three of them then returned to the rest of the family. She maintained that she was with her father and T for the whole time that they were getting the water. She also said that she saw T go to the bathroom. She heard the toilet flush and saw T coming out shaking her hands. She said that T was only gone for a minute.

Grounds of appeal

1. [22]

   In his summing up the sentencing judge said this:

2. [23]

   A little further on in the summing up his Honour said this:

3. [24]

   The applicant submitted that the direction to the jury that the evidence of complaint was evidence “independent” of what the complainants said on screen was wrong at law and illogical. The applicant pointed to the definition of “independent” in the Oxford Dictionary, where it is said that the word means “free from outside control or influence; you should take independent advice” and “not connected to another; separate”. The applicant submitted that “independent evidence” must mean evidence not dependent on another source for its truth or reliability.

4. [25]

   The applicant drew attention to what was said in Regina v Skuse (NSW Court of Criminal Appeal, 24 October 1996, Unrep) where Mclnerney J (with whom Hunt CJ at CL and Smart J agreed) said of complaint evidence:

5. [26]

   The applicant also drew attention to what was said by the High Court in Papakosmas v The Queen (1999) 196 CLR 297 at [17], that evidence of complaint cannot constitute corroboration in the technical sense, because it is not independent of the complainant.

6. [27]

   The applicant accepted that no redirection was sought at the trial, and acknowledged that leave was required under rule 4 of the Criminal Appeal Rules 1952 to argue the ground of appeal. However, a basis for leave being given was submitted to be the fact that the direction given by the trial judge was in accordance with the Judicial Commission Criminal Trials Bench Book (the Bench Book).

7. [28]

   The applicant relied on the decision of this Court in SB v R [2020] NSWCCA 207 where Rothman J (with whom Hoeben CJ at CL and Hamill J agreed) held that the direction in the Bench Book and an identical direction given by the trial judge in SB was a misdirection. The applicant submitted further that it could not be said in a case where the contested issues turned on the credibility of the complainant, that the proviso should be applied to say that no substantial miscarriage of justice occurred.

8. [29]

   The Crown submitted that, read as a whole, there was no error in the judge’s direction. This was because the judge was explaining to the jury that the complaint evidence was separate to, and additional to, the complainants’ evidence on oath, and that the jury could consider the evidence of the complaints as a separate basis for finding that the alleged incidents took place. The trial judge did not direct the jury that the complaints corroborated the complainants’ evidence. Reference was made to Parkinson v R [2016] NSWCCA 49 at [112]-[114] and to Papakosmas v The Queen (1999) 196 CLR 297; [1999] HCA 37 at [42] and [88]-[89].

9. [30]

   The Crown pointed out that no objection was made by counsel for the applicant at the trial to the direction. The direction was contained within the Bench Book, and had been given in numerous trials without issue.

10. [31]

    The Crown submitted that if the use of the word “independent” constituted a wrong decision on a question of law or an irregularity for the purposes of the third limb of s 6 of the Criminal Appeal Act 1912 (NSW), the proviso should be applied.

11. [32]

    The ground of appeal and the circumstances giving rise to it are indistinguishable from the issue dealt with by this Court in SB v R [2020] NSWCCA 207. In that case, the applicant was charged with a number of sexual offences against his daughter when she was between the ages of six and eight. Complaint was first made a little over five months after the last occasion where sexual assault occurred. The sentencing judge gave a direction to the jury about the way they could use the complaint, which was identical with the direction in the present case, using the wording in the Bench Book.

12. [33]

    Justice Rothman (Hoeben CJ at CL and Hamill J agreeing) said:

13. [34]

    His Honour then discussed what the High Court said in Papakosmas and said:

14. [35]

    That judgment had not been delivered at the time Judge Pickering SC summed up to the jury in the trial of the applicant. There can be no criticism of him for following what was then a direction hallowed by time: DV v R [2017] NSWCCA 276.

15. [36]

    As in SB, while it was incorrect for the trial judge to tell the jury that the complaint was independent, when that statement is considered with what the judge said subsequently, that saying something more than once does not necessarily make it true, means that overall there was no misdirection nor was there any miscarriage of justice.

16. [37]

    Given that the direction given by the judge was in accordance with the Bench Book, r 4 should not stand in the way of leave being given to argue this ground, although the ground ultimately fails.

17. [38]

    At the sentence proceedings, both the Crown and the defence provided written submissions to the Court. In the Crown submissions, the Crown conceded that the applicant was a person of good character in the context of s 21(3)(f) of the Crimes (Sentencing Procedure) Act 1999 (NSW). The submissions of counsel for the applicant (who was not trial counsel) referred to the applicant not having a record of previous convictions, but did not refer to good character.

18. [39]

    In the course of the proceedings on sentence, Dr Andrew Ellis, a psychiatrist, gave evidence for the applicant. His evidence was that the scanning of the applicant’s brain while he was in custody showed that there was restricted blood flow to areas of his brain, which had caused parts of his brain to atrophy and die. He said that there were clinical findings and imaging findings, which supported the diagnosis of a neurocognitive disorder, or vascular dementia. Dr Ellis said “there is evidence that deficits in higher order executive functions increase impulsive behaviour and disinhibit usual prohibitions on sexual drives”.

19. [40]

    Dr Ellis was cross-examined by the Crown. He said that in part he was basing his conclusion on the information available to him that this was the first time any behaviour like this had occurred. The Crown then asked Dr Ellis to put to one side the assumption that this conduct had never occurred before. He was asked if that would make the connection between the brain degeneration and the offending behaviour less likely. Dr Ellis agreed that it would make the connection less likely, and the sexual interest in children would be more salient.

20. [41]

    The Crown then sought to tender a statement of AA dated 13 June 2017. The tender was opposed by the applicant’s counsel on the basis that it was hearsay.

21. [42]

    The statement recorded that AA said that she spoke to other family members about “the way T was assaulted by the applicant”. One of the relatives was a niece of the applicant, called N. The statement recorded N as saying to AA:

22. [43]

    The statement went on to say that N told AA that it happened to her before she moved to Australia when she was living with the applicant in Iraq. At the time of the statement N was about 50 or 60 years old.

23. [44]

    His Honour gave a judgment admitting the statement into evidence.

24. [45]

    Having set out what appears above as to how the issue arose, the sentencing judge said this:

25. [46]

    The applicant submitted that there is clear authority that in sentence proceedings, if there is no order that the Evidence Act 1995 (NSW) applies, then the common law rules of evidence apply. Under those rules, the statement was clearly inadmissible.

26. [47]

    The applicant submitted that the admission of the statement in the course of submissions meant that the applicant did not have the opportunity to challenge the statement, or to call evidence of the applicant's good character. In that way, the applicant was prejudiced.

27. [48]

    The Crown submitted that there is a real doubt on the authorities about whether, in the absence of the Evidence Act applying, the common law rules of evidence apply. Reference was made to R v Elfar [2003] NSWCCA 358 at [25] and R v Alvarez [2011] NSWCCA 33; (2011) 209 A Crim R 297 at [66].

28. [49]

    The Crown submitted that the applicant must show a House v The King error to succeed in an appeal against sentence. The Crown submitted that the statement was admitted for a limited purpose, and that the sentencing judge concluded that it did not undermine Dr Ellis’s opinion. In that way, the applicant had failed to show the sentencing decision was affected by a House v The King error.

29. [50]

    The Crown submitted that the statement was not admitted for the purpose of establishing bad character, but only for the purpose of rebutting the assumption Dr Ellis had made. As the sentencing judge’s judgment makes clear, the Crown had foreshadowed, in the context of both the trial and the sentence proceedings, that if the applicant sought to rely on good character, N would be called to give evidence in rebuttal. The applicant did not seek to lead evidence of good character following the judgment admitting the statement.

30. [51]

    No order was made pursuant to s 4(2) of the Evidence Act. The result was that the provisions of that Act did not apply. This Court held in R v Bourchas [2002] NSWCCA 373; (2002) 133 A Crim R 413 at [61] and Farkas v R [2014] NSWCCA 141 at [14] and [89] that in those circumstances the common law rules of evidence apply to the proceedings.

31. [52]

    In Bourchas, Giles JA (Levine and Sperling JJ agreeing) said (after what Campbell J described in Farkas at [89] as “a detailed and insightful review of the case law and the writings of commentators”), at [61]:

32. [53]

    In both Elfar and Alvarez this Court considered the issue of receipt of untested material, amounting to hearsay, from an offender directly by means of a letter to the court, and from a psychological report setting out information from the offender. Both cases discussed receipt of the material in terms of the principle often said to have originated in R v Qutami [2001] NSWCCA 353; (2001) 127 A Crim R 369. In neither Elfar nor Alvarez was Farkas or Bourchas cited to the Court. Qutami predated the decisions in Farkas and Bourchas.

33. [54]

    There is an uneasy tension between Farkas and Bourchas on the one hand, and the cases which approach the matter on the basis of Qutami, because the latter group do not deal with the matter from an admissibility perspective, but rather speak of the weight to be given to the material, making the assumption that the material is admissible because the Evidence Act does not apply: see for example, Alvarez at [43].

34. [55]

    There is also an uneasy tension between Farkas and Bourchas on the one hand, and what was said by the High Court in Weininger v The Queen (2003) 212 CLR 629; [2003] HCA 14 at [21]:

35. [56]

    It is not strictly necessary to resolve the tension I have referred to in the present case. Whether the material should have been rejected as offending the common law hearsay rule (Bourchas at [61]), or whether the material was properly admitted but little weight given to it (Qutami at [58]-[59]), the sentencing outcome was not affected by the receipt of the material. In that way, no House v The King error is established.

36. [57]

    In his Remarks on Sentence, his Honour said,

37. [58]

    That was entirely in accord with what appeared in the written submissions of the applicant at the sentence proceedings.

38. [59]

    A little further on, his Honour said:

39. [60]

    The right of appeal in relation to sentence is contained in s 5(1)(c) of the Criminal Appeal Act 1912 (NSW). The right, subject to leave, is to appeal “against the sentence passed”. Section 6(3) provides:

40. [61]

    There is no right to appeal against interlocutory rulings made prior to imposing the sentence, unless that interlocutory ruling resulted in the sentence being erroneous. The findings made by the sentencing judge make clear that he accepted the evidence of Dr Ellis despite the statement. Dr Elllis’s evidence was supportive of the applicant’s case that the offending was related to the vascular dementia. In that way, the receipt of the statement by the sentencing judge had no influence on the sentence imposed.

41. [62]

    Further, the sentencing judge’s findings made clear, as the Crown said when tendering the statement, that it was not tendered to raise the applicant’s bad character, but only to provide a basis for the answer Dr Ellis gave in cross-examination.

42. [63]

    Nor did the receipt of the material preclude the applicant from adducing evidence of good character if he had chosen to do so. The decision not to do so must be seen as a forensic decision in the light of the arrangement between the parties. At the trial the agreement was that if the applicant did not raise good character, the Crown would not call the person referred to in the statement from AA to give direct evidence of the matters in the statement.

43. [64]

    During the course of the sentence hearing the following exchange occurred between the sentencing judge and counsel for the applicant:

44. [65]

    The sentencing judge referred to that matter in his interlocutory judgment where he said:

45. [66]

    It is also important to note that after his Honour delivered his interlocutory judgment, counsel for the applicant addressed his Honour, and concluded by saying, “I rely on my written submissions”. Those submissions made no reference to good character, only that the applicant had no prior convictions.

46. [67]

    All of those matters show that a forensic decision was made not to call evidence of good character. The applicant should not now be permitted to adopt a different approach on appeal to this Court: Zreika v R [2012] NSWCCA 44; (2012) 223 A Crim R 460 at [81].

47. [68]

    I would reject this ground.

48. [69]

    The sentencing judge found that the objective seriousness of counts 1 and 2 fell “comfortably somewhere between the lowest in the range of objective serious (sic) and the middle of the range of objective serious offence of that nature.” In relation to count 5 involving Y, his Honour found that the objective seriousness was slightly less than count 1, but still within a very similar range in relation to that aspect. In relation to count 3 involving sexual intercourse his Honour found that it was “comfortably … between the bottom of the range and the mid range.

49. [70]

    His Honour noted that the applicant did not seek to put himself forward as a person of prior good character, but he found that it was a separate mitigating factor that the applicant had no criminal history.

50. [71]

    In relation to the applicant’s subjective features, his Honour recorded in some detail matters in reports from the psychiatrists Dr Chew of 3 August 2018, Dr Ellis of 19 May 2019 and Dr Gordon Elliott of 15 August 2019. All of those psychiatrists had come to a similar view about the applicant’s diagnosis although there were some minor differences between them. All of them considered that he suffered from a progressive dementia, probably of a vascular nature, and that he had some psychotic symptoms related to that dementia.

51. [72]

    As noted earlier, the sentencing judge accepted Dr Ellis’s evidence that the applicant had experienced deficits in higher order cognitive functioning at the time, which could serve as an explanation for his new and uncharacteristic impulsive sexual behaviour. His Honour accepted on balance that there was a causative link between the offending and the developing dementia which, his Honour noted, was not as bad at the time of the offending as it was at the time of sentence, some three and a half years later. His Honour found that there was no doubt that aspects of his moral culpability had less of a role to play because of the causal link between the offending and the dementia. His Honour held, nevertheless, that there was no question, as Dr Ellis had said, that the applicant knew what he was doing was wrong. In that way his behaviour still involved significant moral culpability.

52. [73]

    His Honour held that because of the causal link, the importance of general deterrence would have less of a role to play, although it still carried some weight. His Honour held that there was no aspect of specific deterrence in the sentencing exercise.

53. [74]

    His Honour noted from the comments of the psychiatrists that the applicant’s time in custody would be more difficult for him because he did not have English as a first language, he was in his late 70s, and because of his dementia. His Honour said that those factors must be taken into account in determining the appropriate sentence, because it would weigh more heavily upon him. His Honour held that the applicant was not remorseful.

54. [75]

    His Honour then discussed the impact of the offending on the two victims and he went on to say:

55. [76]

    His Honour indicated that he was going to find special circumstances to a large extent because he wanted the applicant monitored for a significant period of time upon his release.

56. [77]

    His Honour noted that the sentence involved totality. He said there were two different victims in the matter, and there must be an additional sentence to reflect what happened to Y, but there must also be a degree of extra accumulation for the additional offences committed against T. His Honour said:

57. [78]

    The applicant drew particular attention to what the three psychiatrists had said in their reports, and noted the sentencing judge’s acceptance of a connection between the dementia and the offending. Senior counsel for the applicant submitted that his Honour’s findings on the facts and his conclusions about the weight to be given to the relevant factors in determining the final aggregate sentence should be accepted. He submitted, however, that his Honour’s generally favourable findings on those matters were not reflected in the ultimate aggregate sentence.

58. [79]

    Senior counsel submitted that there were some unusual features in the case which made it difficult to find comparable cases. Reliance, however, was placed on R v Scott [2020] NSWCCA 81 and RC V R [2020] NSWCCA 76. Senior counsel submitted that the indicative sentence for count 3 was too heavy, and that that sentence has informed the aggregate sentence which, as a result, is manifestly excessive.

59. [80]

    It is not necessary to set out the principles relating to a determination of whether a sentence is manifestly excessive. Another way of asking the question is whether the sentence is unreasonable or plainly unjust.

60. [81]

    It is apparent from the Remarks on Sentence that, as the applicant acknowledges, the factual findings and the weight to be given to various factors were generally found by the sentencing judge to be favourable to the applicant. It is clear from those Remarks that, had it not been for the causal link between the applicant’s dementia and the offending which his Honour found reduced his moral culpability, the sentence would have been higher.

61. [82]

    His Honour correctly focused on the offence of sexual intercourse. His Honour indicated an indicative sentence of four years and six months with a non-parole period of two years and six months. It may be observed that the aggregate sentence was only a year longer than that indicative sentence, with the non-parole period being only six months longer. That was a small notional accumulation, not only taking into account that there were two victims, but that there were three other offences where questions of accumulation had to be considered. It cannot be said that the notional accumulation was not appropriate in the circumstances.

62. [83]

    The issue of whether the aggregate sentence was manifestly excessive largely devolves to the question of whether the indicative sentence for the sexual intercourse offence was itself manifestly excessive.

63. [84]

    There is no challenge to the finding that this matter fell between the bottom of the range and the mid range of objective seriousness. The total indicative sentence was less than one third of the standard non-parole period provided for this offence, and it cannot be overlooked that the applicant was being sentenced as a person found guilty by a jury after a trial. Nor can the maximum penalty of life imprisonment be easily ignored despite the finding of objective seriousness. The victim was aged only seven years, almost three years younger than the eldest child to which the offence relates. Moreover, the offending was a considerable breach of trust because of the relationship between the victim and the applicant. Accepting all of the favourable factors identified by the sentencing judge, it cannot be said that the indicative sentence for that offence was not within the range of appropriate sentences.

64. [85]

    When considering the aggregate sentence, it should also be noted that his Honour found special circumstances to vary the statutory ratio significantly to 54.5%.

65. [86]

    In my opinion, reliance on Scott and RC is of little assistance to the applicant. In Scott, the three counts of indecent assault consisted of the offender kissing his eight year old granddaughter on or near the vagina on the outside of her clothing, and one count of him kissing her on the vagina itself in a manner that amounted to cunnilingus. The sentence imposed at first instance was an aggregate sentence of six years with a non-parole period of three years and six months. The indicative sentence for the sexual intercourse was five years with a non-parole period of three years.

66. [87]

    In this Court, the sentence was reduced to an aggregate sentence of five years with a non-parole period of two years and six months. The indicative sentence for the sexual intercourse was four years with a non-parole period of two years. In those circumstances, it is difficult to see how it can be said in relation to the present offending that an aggregate sentence and a non-parole period of only six months greater in each case was not within the range of appropriate sentences for the sentencing judge in the present case. Nor does that conclusion take any account of what was described as the offender’s compelling subjective case for leniency in that matter.

67. [88]

    RC involved one count of a grandfather digitally penetrating his six year old grandson’s anus when he was washing him in the bath. The judge at first instance erroneously imposed a Community Corrections Order without obtaining the necessary report in relation to work availability. On a Crown appeal, this Court said that a sentence of three years’ imprisonment was appropriate in circumstances where it was an isolated and transitory offence committed for a non-sexual purpose. In fact, for very specific reasons, principally relating to a fear of the offender contracting COVID-19 if placed into custody, the residual discretion was exercised not to interfere with the sentence, although erroneous.

68. [89]

    In my opinion, the applicant does not show that the aggregate sentence imposed upon him was unreasonable or plainly unjust. I would reject this ground.

Conclusion

1. [90]

   I propose the following orders:

2. [91]

   FAGAN J: I agree with Davies J. I add the following with respect to ground 1. The part of the summing up that is impugned has been extracted by Davies J at [23]. For ease of reference I reproduce the sentence that is said to have been a misdirection concerning the use that might be made of the evidence that T and Y complained immediately to their parents:

3. [92]

   If it were necessary to judge the words complained of without regard to those two further sentences, for my own part I would conclude that they would be understood by the jury in a sense not involving misdirection. It would be evident to the jury that the learned trial judge did not mean, by the expression “independent of”, that the contemporaneous complaints came from a source independent of T and Y themselves. Such a meaning would not make sense. The submission that the impugned words might have been so understood attributes to jurors that they may be irrational, or at least lacking in common sense, either of which I consider unjustified and contrary to both the experience and the assumptions of trial by jury. In my view it would be apparent to the jurors that his Honour used the expression “independent of” in the sense that the contemporaneous complaints of T and Y, whilst coming from the complainants, constituted pieces of evidence that were separate from and additional to the evidence that they gave in court.