DS v R

1. [1]

   BASTEN JA: The applicant stood trial in the District Court in June 2017 on a number of counts of sexual assault and indecent assault, in each of which the complainant was his stepdaughter, then aged between six and 13 years. He was convicted on 14 counts, (three being alternative offences), and acquitted of two. The jury were unable to agree in relation to one count for which there has not been a retrial.

2. [2]

   On 12 December 2017 he was sentenced to an aggregate term of 11 years with a non-parole period of 6 years, commencing on 19 August 2015 when he was first taken into custody. The non-parole period is due to expire on 18 August 2021. An application for leave to appeal against both convictions and sentence was filed on 28 July 2020, some three years after the jury verdicts were taken. [1]

Extension of time

1. [3]

   A notice of intention to appeal expired on 30 April 2019. By that stage almost two years had passed since the trial. The applicant is unrepresented and no affidavit was filed explaining the reasons for the delay. However, brief written submissions prepared by him suggested that until recently he was held in custody with other offenders who were not aware of his offences and was at risk of being severely bashed if his offending were revealed. It was to be inferred that that impeded him in preparing the necessary papers.

2. [4]

   Having put in brief written submissions with respect to his proposed appeal, the applicant expressly declined to appear either in person or by audio visual link in this Court. There was, therefore, no opportunity for him to elaborate upon his submissions. However, the application for an extension of time was not opposed by the Director of Public Prosecutions. In these circumstances, there is no reason not to grant an extension of time with respect to his application for leave to appeal against an aggregate sentence said to be manifestly excessive.

3. [5]

   However, a belated review of convictions raises broader issues with respect to the proper administration of criminal justice. It is necessary to consider what orders might be made if his appeal were to succeed. If it were probable that a retrial would be ordered, that might require that the complainant give evidence again (though no doubt by replaying the video-recording) and she might be cross-examined again, possibly at length, about matters which she would have wished to put behind her, so far as that might be possible. That is a serious matter in any case, but is sometimes unavoidable. However, to place the complainant in such a position more than four years after the original trial is a factor which would militate against a lengthy extension of time. On the other hand, in the present case the principal ground of appeal was that the verdicts were unreasonable or unsupportable on the evidence: success on that ground would likely lead to an acquittal. Finally, although other witnesses were called, including her mother, the prejudice with respect to them would be less severe, although memories will have faded.

4. [6]

   Having regard to all these circumstances, including the consent of the Director, the appropriate course is to grant an extension of time to permit the application for leave to appeal to proceed with respect to both his convictions and his aggregate sentence.

Leave to appeal

1. [7]

   The three grounds relevant to the convictions were as follows:

   1. (1)

      “the guilty verdicts were unsafe and/or unsatisfactory this led to a miscarriage of justice”;

   2. (2)

      “the guilty verdicts were inconsistent this led to a miscarriage of justice”;

   3. (3)

      “the jury failed to take into account the fact that the appellant was in fact a pathologist tasked with caring for the sick and/or the vulnerable; this led to a miscarriage of justice”.

2. [8]

   The first two grounds are self-explanatory; counsel for the Director fairly construed the third ground as a complaint regarding the failure to adduce evidence of good character.

3. [9]

   It is convenient to start with ground 2, and then consider unreasonableness generally (ground 1), which will necessitate consideration of the prosecution case. Although the appellant was unrepresented in this Court, he was represented at his trial. This fact is material to ground 3.

Ground 2: inconsistent verdicts

1. [10]

   The applicant’s written submissions stated:

2. [11]

   There were, in effect, 15 separate incidents encompassing 17 charges. Six charges involved aggravated indecent assault, 11 involved sexual intercourse by digital penetration. With respect to two cases in which the applicant was found guilty of a statutory alternative to the primary charge the finding is explicable by reference to the age of the complainant. Thus, both counts 5 and 6 identified a time period partly before and partly after the complainant’s tenth birthday. The primary offences allege sexual intercourse with a person under 10; the alternative charges alleged sexual intercourse with a person under 16. It may be inferred that the jury were satisfied that the incident alleged took place, but not that it occurred before her tenth birthday.

3. [12]

   With respect to the third matter where the alternative charge was accepted (not guilty on count 9, but guilty on count 10) the primary count was sexual intercourse, while the alternative count was aggravated indecent assault. The complainant gave evidence that he commenced by massaging her buttocks and then moved his hands to her vagina, finally inserting his thumbs into her vagina. The same incident involved an aggravated indecent assault, involving the applicant taking off her shirt and rubbing her breasts. The jury convicted in respect of both indecent assaults, but clearly had a doubt as to whether the element of digital insertion occurred on that occasion.

4. [13]

   Shortly before the trial the subject of the proposed appeal, an earlier trial had miscarried and the jury had been discharged. Pursuant to s 306I(1) of the Criminal Procedure Act 1986 (NSW) the prosecutor tendered a record of the complainant’s evidence in the discontinued trial, being evidence given on 30 and 31 May 2017. [2] The conduct which formed counts 8, 9 and 10 was the subject of evidence given on 31 May 2017. The evidence as to the massaging of the breasts and buttocks was clear, but ended with the complainant saying that the applicant would “be running his thumbs along, along the my – like, the walls – the vagina and then he would, like, insert his thumbs and …”. [3] Whether the evidence trailed off or was interrupted by a further question from the prosecutor is unclear, but the next question suggests that the evidence trailed off: [4]

5. [14]

   Thus, the evidence of digital penetration was sufficiently tentative not to be picked up by the prosecutor in her next question. It is entirely comprehensible that the jury accepted the evidence of massaging, but was not satisfied beyond reasonable doubt of digital penetration.

6. [15]

   It remains to consider the evidence on counts 1 and 15, of which the applicant was acquitted and count 11 on which the jury could not agree.

7. [16]

   Count 1 charged an indecent assault which was said to have occurred when the applicant had collected the complainant from school and parked in the driveway of their home. The complainant was sitting in the back seat and gave evidence that the applicant had put his hand between her legs and put his fingers along the seam of her underwear, an action which went on for a few minutes. [5]

8. [17]

   With some hesitation, the complainant said that it occurred when she was “like around year 2, so I was around 7.” [6] However, when the prosecutor returned to the incident the following day to ask her what year in school she was at the time it happened she responded: [7]

9. [18]

   Count 11 involved a similar act, which occurred, according to her evidence, whilst they were waiting at Blacktown station to collect a boy who lived next door in order to take him home after school. The complainant having arrived earlier, was sitting in the back seat of the applicant’s car with the applicant in the driver’s seat. She described the conduct in the following terms: [8]

10. [19]

    It is not clear from the transcript whether there was some uncertainty in the complainant’s voice when describing this incident: the words are consistent with a degree of hesitancy or embarrassment, which was for the jury to judge. However, it is notable that in each of the three incidents which involved touching the complainant while she was in the back seat of the car (counts 1, 4, 5, 6 and 11) the jury rejected claims of sexual intercourse, except in respect of count 5, but her evidence of that matter suggested that she was not sitting in the back seat, but clambering across into the front seat in order to get out of the car to see her dog. In each of the other cases, the jury rejected charges of sexual intercourse (that is digital penetration) but upheld counts involving indecent assaults. That suggested consistency of approach was perhaps based on the difficulty of the act of reaching behind him into the back seat: she was cross-examined to suggest that such an action would require “very long arms”. [9]

11. [20]

    Finally, count 17 was a charge of indecent assault, which she said occurred about one week before she kicked the applicant to stop him approaching her, conduct which led to an argument and the intervention of her mother. She then told her mother that he had been interfering with her and she left the house to go to live with her grandmother. Count 17 involved conduct identified in response to the question “can you remember the last time the accused ever touched you?” [10] The incident was described in the following terms:

12. [21]

    Counsel for the respondent submitted that the jury may not have been satisfied that the act had a sexual connotation. That is a plausible explanation. The jury may also have thought she was not fully awake when it occurred. No other complaint had those elements.

13. [22]

    In a case where there are multiple charges involving one complainant, a jury cannot safely convict unless persuaded beyond reasonable doubt of the truthfulness and reliability of the complainant with respect to each charge. The jury is required to consider and reach a verdict on each charge. If it convicts on some but acquits on others there may be an inference that it was not satisfied beyond reasonable doubt as to the truthfulness and reliability of the complainant generally. Thus an acquittal on one count may suggest that convictions on other counts are unsafe. On the other hand, if an appeal court can discern a rational basis for distinguishing between the two categories of counts, then, absent other factors, it can usually be satisfied that the jury did not depart from their proper function and that they were properly satisfied beyond reasonable doubt as to the truthfulness and reliability of the complainant with respect to each conviction, but not in relation to other counts.

14. [23]

    There is a sense in which the focus of inquiry in such a case is upon possible explanations, not for the convictions, but for the acquittals. [11] However, the evidence concerning the charges on which the appellant was acquitted should not be the sole focus of consideration. Where there appears to be some aspect of the evidence which might well have left the jury with a reasonable doubt, it is important to consider whether the evidence in support of the charges on which the jury convicted was not attended by a similar element. Statements about a complainant’s credibility in a generic sense must be capable of differential application to the acquittals and convictions, to avoid the conclusion that the convictions are unsafe.

15. [24]

    In the present case, it is therefore necessary to read the complainant’s evidence as a whole. However, as explained further below, that exercise suggests that, with respect to the convictions, her evidence was both compelling and sufficiently precise as to time and place to satisfy the jury that particular events occurred as she said they did. As explained above, there were elements of the evidence as to charges on which the jury acquitted, not present with respect to the acquittals, which was reasonably capable of explaining the different outcomes. Accordingly, the verdicts of acquittal should not be characterised as inconsistent, but rather as demonstrating a jury which carefully assessed the evidence with respect to each charge. This ground must be rejected.

Ground 1: unreasonable verdicts

1. [25]

   The conclusion noted above that the evidence of the complainant was compelling effectively disposes of the generic ground that the convictions were unsafe or unsupportable on the evidence. Indeed, as the applicant fairly conceded in his written submissions, the complainant “was a compelling witness”.

2. [26]

   The cross-examination of the complainant was thorough, but entirely fair. Apart from denials by the applicant in his record of interview with police, and in the course of recorded conversation between him and the complainant following her request that he meet her, counsel had little information to go on. Two high points of the cross-examination may be noted.

3. [27]

   The conversation in the car when the complainant was wearing a listening device occurred some 12 years after she had moved out of the family home to live with her grandmother. There was a passage in the course of the conversation which read as follows: [12]

4. [28]

   The cross-examination on this passage was as follows: [13]

5. [29]

   The second example was based on the evidence that the complainant’s mother and her stepfather had been having serious arguments and fights at home for some time before the complainant told her mother about the molestation, following which she left the matrimonial home and went to live with her grandmother. The cross-examiner suggested that she and her mother had conspired to tell stories about the applicant so that the mother could obtain a property settlement. The questioning was as follows: [14]

6. [30]

   The answers given by the complainant in response to these two lines of questioning may well have been accepted by the jury. In my view, read in the context of the cross-examination as a whole, it is unlikely that they caused any significant damage to her credibility. No doubt there was some forensic difficulty for the applicant’s counsel in dealing with an admission that, at least on two occasions, he had touched her vagina with his hand and, on at least one occasion, placed it inside her vagina. [15]

7. [31]

   In my view it was open to the jury to be satisfied beyond reasonable doubt as to the guilt of the accused on each charge of which he was convicted. There is no sufficient basis for the assertion that the convictions were unreasonable or unsupported on the evidence.

Ground 3: good character evidence

1. [32]

   It was not entirely clear from the appellant’s ground of appeal, or the written submissions in support, as to what he meant by the failure of the jury to take into account the “fact that he was a pathologist tasked with caring for the sick and vulnerable.” There was no evidence that he was a pathologist; it appears from the mother’s evidence that he had been a driver working for a pathology clinic. The applicant did not give evidence or call evidence at his trial.

2. [33]

   The respondent also inferred that he was complaining about a failure to call character evidence on his behalf. While it is true that no such evidence was presented to the jury, there is nothing before this Court to suggest that there was evidence available which might have assisted the applicant on the relevant charges.

3. [34]

   On the other hand, there was evidence before this Court tendered by the respondent to the effect that the applicant had been arrested in August 2015 on sexual and indecent assault charges involving a separate complainant. He was committed for trial in the District Court in September 2016. A trial held in May 2017 resulted in the jury being discharged. Mr Hoare, who was counsel for the applicant at his trial on the present matters also appeared for him at that trial. Accordingly, as both the applicant and counsel were aware, at the time of the present trial (in June 2017) there were other unresolved criminal charges of a similar nature pending against him. It would have been open to the prosecutor to seek to adduce evidence from the other complainant in order to rebut any good character evidence: Evidence Act 1995 (NSW), s 110. Accordingly, it should be inferred that any failure to call evidence of good character was a forensic decision made by his counsel which was entirely reasonable in the circumstances. The relevant ground should be dismissed.

Convictions: conclusions

1. [35]

   Although each of the grounds has failed, and could have been dealt with far more concisely had it been thought appropriate simply to rely on the written submissions of the unrepresented applicant, this is, nevertheless, a case where leave to appeal should be granted. However, the appeal against the convictions must be dismissed.

Sentence: manifest excess

1. [36]

   In the event that the convictions stood, the applicant submitted that the sentence was manifestly excessive and, indeed, “crushing.”

2. [37]

   The sentence imposed in the District Court on 12 December 2017 was an aggregate sentence of 6 years imprisonment, to date from 19 August 2015 and to expire on 18 August 2021, with an additional term of 5 years.

3. [38]

   The substance of the submissions for the applicant was that at the time of sentencing he was some 72 years of age and in ill-health. He claimed that he was serving his sentence with “many young men lucky to be a third of my age”, who enjoyed picking on older inmates like him. He said that if he complained, he would be labelled a “dog” and retaliation would be swift, “taking place in the communal showers.” He also stated that since being sentenced he had suffered “four heart attacks requiring hospital.” Finally he said that he relied on s 276 of the Crimes (Administration of Sentences) Act 1999 (NSW), with respect to the current pandemic.

4. [39]

   It is convenient to deal with the last point first. Section 276 of the Crimes (Administration of Sentences) Act provides a power for the Commissioner to make an order releasing an inmate on parole in respect of certain classes of prisoner and in specified circumstances. It is not relevant to the sentencing of an offender.

5. [40]

   So far as the applicant’s health is concerned, the sentencing judge had before him a 20 page document prepared by Justice Health and Forensic Mental Health Network, setting out the services available in New South Wales gaols. The judge also had a report from the Parklea Parole Unit noting that he was 71 years old and, in relation to physical health:

6. [41]

   At the time of sentencing, the offender had been in custody for some 2 years. The sentencing judge noted that there was “no evidence the ill-health of the offender has caused his period of imprisonment to be more onerous.” [16] The judge further noted his satisfaction that the offender could be properly cared for whilst in custody with the available facilities. He continued:

7. [42]

   The judge also took into account that a sentence involving a significant term of imprisonment would represent “a substantial proportion of the period of life that is left to him”. He took that factor into account in determining whether there were special circumstances which allowed for a variation of the proportion of the sentence to be served by way of a non-parole period. [17] The judge found special circumstances for the purposes of s 44 of the Crimes (Sentencing Procedure) Act 1999 (NSW) and made a significant variation to the default ratio of the additional term and the non-parole period.

8. [43]

   To the extent that the applicant implies that the sentence has imposed hardships which were not anticipated by the sentencing judge, this Court may take into account the report from Justice Health dated 2 February 2021. The report noted that the applicant had been admitted to Westmead Hospital on 22 September 2016 (that is, more than a year before he was sentenced and some nine months prior to his trial) suffering from acute myocardial infarction. He was treated by way of stents and discharged four days later. There is no evidence of subsequent hospitalisation for cardiac arrest. Otherwise the report indicated that he was being treated for a range of medical conditions, as satisfactorily as may be expected. He received a CT brain scan in July 2018 (with results “normal”) and was referred to Prince of Wales Hospital for a urology investigation and treatment. There is nothing in this history to suggest unforeseen hardships which would warrant resentencing by this Court.

9. [44]

   No doubt the applicant is vulnerable to attack, perhaps on account of his age, but also on account of his offending. That is an issue to be dealt with by internal classification and placement within the prison system. There is no evidence of him having suffered an attack and no evidence as to any failure to take the usual procedures for protection.

10. [45]

    There remains a question as to whether the sentence was manifestly excessive. In this regard, it is appropriate to have regard to the putative sentences which would have been imposed had the judge been sentencing otherwise than by way of an aggregate sentence.

11. [46]

    The most serious offence was undoubtedly the count 2, involving sexual intercourse with a person under 10 years of age and which appears to have occurred when she was approximately seven years of age. She was assaulted in the security of her home, and indeed in her bedroom, by her stepfather, who had parental responsibility for her. The offence carried a maximum penalty of 20 years imprisonment. The judge indicated a putative sentence of 7 years for that offence.

12. [47]

    There were five other offences of sexual intercourse when the complainant was between the ages of 10 and 16 years, largely in the range of 11-13 years. One offence, which appears to have taken place when she was 12 years of age involved the applicant placing his fingers deeply into her vagina and causing bleeding. There was a putative sentence of 5 years for that offence (count 14). Being some years apart, the sentences for counts 2 and 14 would have warranted a significant degree of accumulation. The sentences for the other five offences of sexual intercourse were 4 years (counts 7, 12 and 16) and 4 years 6 months (counts 13 and 15). That is a total of 21 years with respect to the five further offences involving digital penetration. The individual sentences for the remaining offences also totalled 12 years.

13. [48]

    There was no challenge to the judge’s findings with respect to the seriousness of the offending. Apart from the objective seriousness of the conduct, the judge took into account that the offender continued to maintain his innocence and had expressed no remorse, nor acknowledged the effects of his conduct on the complainant. The judge carefully reflected upon how he should deal with that circumstance, noting that the offender was entitled to maintain his plea of not guilty. Clearly he was not entitled to mitigation of sentence on account of remorse and insight, absence of which could also have damaged his prospects of rehabilitation and increased the risk of reoffending. Nevertheless, the judge noted that there had been no offending subsequent to those offences for which he was being sentenced, and made an affirmative finding that it is likely he will not reoffend. [18]

14. [49]

    The trial judge was conscious of the risks for his safety in prison and noted that he was “currently housed in the protection unit managed as a special management area”. He further noted that there were no reports of direct threats or violence whilst he had been in custody. He expressly concluded that there was “no evidence identifying circumstances which would cause me to take into account his manner of incarceration that would result in a further reduction in his sentence.” [19]

15. [50]

    There is no apparent error in the careful sentencing judgment. The indicative sentences referred to above demonstrate a reasonable assessment of the seriousness of the offending. They preclude any finding that the sentence, heavily as it may bear upon the applicant, is in any respect manifestly excessive.

16. [51]

    This is a case in which I would refuse leave to appeal against the sentence.

Conclusions

1. [52]

   The Court should make the following orders:

   1. (1)

      Grant the applicant an extension of time within which to seek leave to appeal against his convictions and sentence, up to and including 28 July 2020.

   2. (2)

      Grant the applicant leave to appeal against his convictions, but dismiss the appeal.

   3. (3)

      Dismiss the application for leave to appeal against sentence.

2. [53]

   WALTON J: I agree with Basten JA.

3. [54]

   BUTTON J: I agree with Basten JA.