WS v R

1. [1]

   BEECH-JONES CJ at CL: Between 3 March 2020 and 25 March 2020 the applicant, WS, [1] stood trial before her Honour Judge Woodburne SC and a jury on an indictment that charged him with 18 sexual offences against three children, BB, EH and SF. On 25 March 2020, the jury returned verdicts of guilty on 16 counts and a verdict of not guilty on one count (count 2). No verdict was taken on the other count (count 17) as it was charged in the alternative.

2. [2]

   On 28 August 2020, the applicant was sentenced to an aggregate term of imprisonment of 21 years commencing on 17 December 2018 with a non-parole period of 14 years and 6 months. Subject to any intervention by this Court, he is eligible for release on parole on 16 June 2033.

3. [3]

   The applicant seeks leave to appeal against his conviction (Criminal Appeal Act 1912 (NSW), s 5(1)(b)). His sole ground of appeal against his conviction is expressed in terms that the trial judge erred in directing the jury that they could use “the complaint evidence of the complaint as evidence of the truth of the facts” presumably asserted by the complaint. However, as explained below, his principal contention is that the trial judge directed the jury that complaint evidence is “some evidence independent of the evidence” given by the relevant complainant in the witness box. For the reasons set out below, I conclude that there was no error in that direction and it did not occasion a miscarriage of justice (Criminal Appeal Act, s 6(1)). I would refuse leave to raise the ground.

4. [4]

   The applicant also seeks leave to appeal against his sentence on the basis that the sentence imposed was manifestly excessive. For the reasons that follow, I would grant leave to appeal against sentence but dismiss the appeal.

The Offences

1. [5]

   The offences of which the applicant was convicted, the essential facts of the offending, the trial judge’s finding of their objective seriousness, the maximum sentences and the sentences indicated by the sentencing judge pursuant to s 53A(2)(b) of the Crimes (Sentencing Procedure) Act 1999 (NSW) (the “Sentencing Act”) are set out in the following table (which is based on a similar table provided by the Crown):

2. [6]

   As noted, there were three victims of the applicant’s offences, BB, EH and SF. As the above table makes clear, BB was the subject of counts 1−4 on the indictment which were alleged to have been committed between 1996 and 2000. BB was born in July 1988 and was aged between 8 and 12 during the period in which counts 1 to 4 were said to be have been committed. The applicant was born in January 1971. During 1996 BB’s elder sister, RB, commenced dating the applicant, who was then 25 years of age. On some occasions the applicant stayed overnight at BB’s home. The applicant and RB separated sometime in 2000 or 2001.

3. [7]

   The various offences of which the applicant was convicted in relation to BB and the basal facts on which the convictions were based are set out in the above table. The applicant was acquitted of count 2 on the indictment. This count charged the applicant with committing an offence under s 61M(1) of the Crimes Act 1900 (NSW) against BB. The Crown alleged that the applicant placed his hands on BB’s inner thigh while he was driving with other members of the family in the car in early 1997.

4. [8]

   EH was born in February 1998. EH was the subject of counts 5−14 on the indictment. She was between 5 and 15 years old at the time of those counts. EH’s aunty, Belinda, commenced a relationship with the applicant in March 2005. They were married in 2009. EH said that during the time she grew up she and her mother often lived with the applicant and Belinda. In May 2013, EH’s mother moved away but EH remained with the applicant and her aunty Belinda to complete Year 10.

5. [9]

   EH gave evidence in support of counts 5−14. EH also gave evidence of other (uncharged) acts by the applicant whereby he would come into her bedroom and try and wake her, although she would pretend that she was still asleep. EH said that the applicant pulled the covers down, pulled her pants down, slowly rubbed her vagina and put his finger inside her vagina “but not inside the hole”. EH said that the applicant would tell her she was beautiful and say “[f]uck me”. EH also said that when she lived in Goulburn the applicant drove her to the “lighthouse” (ie, the war memorial) where he touched and licked her vagina and put her hand on his penis. EH said that occurred “maybe three times a week” and sometimes he ejaculated.

6. [10]

   SF was born in March 2002. Her mother is Belinda, i.e. EH’s aunty. The applicant is her stepfather. As noted, Belinda commenced a relationship with the applicant in March 2005. SF’s evidence was adduced by playing three interviews she had with the police. The first was conducted in March 2012. In that interview SF denied that she had been sexually abused. The second interview was conducted in July 2017 and the third interview was conducted in August 2017. These latter two interviews contain the evidence of SF that formed the basis for counts 15−18. In the third interview, SF disclosed other (uncharged) acts of the applicant towards her, being an occasion when the applicant pulled down her pants and put her on his lap while he was teaching her how to drive and another occasion when the applicant made her watch pornography with him.

Complaint Evidence at Trial

1. [11]

   As the above makes clear, BB, EH and SF each gave evidence at the applicant’s trial along with many other witnesses. The applicant gave evidence denying the substance of all the offences, denying the uncharged acts and otherwise denying he engaged in any sexual conduct towards the three victims. For the purposes of addressing the sole ground of appeal against conviction, it is only necessary to describe the complaint evidence adduced by the Crown.

2. [12]

   In her evidence, BB was taken to a police statement she provided in 2018 in which she recounted seeing her sister, RB, in 2008 and telling her, “I don’t know how to tell you but I need to tell you as I’m scared for [RB’s son] … [because the applicant] used to touch me when I was younger”. In the statement, BB said that RB asked her why she did not tell anyone to which she responded, “[b]ecause I didn’t think anyone would believe me”.

3. [13]

   In her evidence at the trial RB said that BB told her, “I have to tell you this because I’m scared [the applicant’s] going to do it” to RB’s son. BB said to RB, “when I was younger, when we were all living in Glebe he touched me”. RB said that she replied, “[w]hat do you mean he touched you?” and BB replied, “[h]e touched me on the breasts, on the outside of my clothing and tried to touch me on the inner thigh”.

4. [14]

   RB recalled BB saying that she wanted to report it to the police as she was concerned for RB’s son. RB said they attended Mount Druitt Police Station and spoke to an officer who took notes. RB recalled that BB told the police that she “wanted them to do something without involving her”.

5. [15]

   The officer they spoke to was Detective Senior Constable Emma Greig. Detective Greig gave evidence at the trial. She could not recall speaking to them but described the contents of a “COPS” entry she made of their attendance. The entry in the COPS report was, in some respects, inconsistent with the evidence of BB and RB about what the police were told. The COPS report records that the “incidents occurred when [BB] went to stay at the home of the [applicant]”, that he would “[c]ome into her room when she was in bed” and “[p]ull her blankets down and would touch her vagina”. The entry also records that “[t]he victim stated that there were incidents of penetration”, although Detective Greig could not recall whether that was a typing error to the effect that it should have stated “no incidents of penetration”. Detective Greig agreed that it was “highly unlikely” that BB would have used the word “penetration”.

6. [16]

   EH said that when she was in Year 8 in Melbourne she told a school friend, Mandi, that “through my childhood … I had been touched and molested by my aunty’s other half”. EH said that when she was in Year 10 in 2013 she told two school friends, Cheyenne and Chloe, as well has her boyfriend, Stefan, that she had been “touched”. EH said that at Christmas in 2013 she told one of Belinda’s daughters, SD, that the applicant “had come into my room and started touching me on the rare occasions or the most occasions”. EH said that when she was 17 years old she told her then boyfriend, Corey, that she had been “touched, molested” by the applicant.

7. [17]

   The Crown called the school friend, Mandi, who said that EH told her that “when she was seven she had been sexually abused for the first time and that had continued until she was 13”. Mandi said that EH also told her that after she came back from New South Wales the applicant had continued to abuse her up to the age of 15. The Crown also called Corey, who recalled that EH told him that she had been sexually assaulted since she was a “little girl” and gave the applicant’s last name. He also recalled that EH said this man “used to take her to a lighthouse in Goulburn and make her give him oral sex and he would give her oral sex in a van”. EH’s school friend, Cheyenne, gave evidence that EH told her that the “uncle she’d been living with had been touching her”, that is, “pull[ing] back the covers and touch[ing] her chest and vagina”.

8. [18]

   SD was born in 1998. As noted, she is one of Belinda’s daughters. She is SF’s half-sister (as they have different fathers). For a period of time around 2013, SD shared a bedroom with EH. In her evidence, SD said she “briefly” recalled EH telling her that the applicant had been sexually assaulting her. She recalled that EH was upset and appeared to be crying.

9. [19]

   In her interview with the police in August 2017, SF said she told her grandmother that the applicant made her watch pornography. SF said she did not want to tell her mother because she was scared of her reaction. However, SF said her mother overheard her telling her grandmother, and so she told her mother as well. SF said her mother spoke to the applicant, she heard some yelling and then her mother told her she was “a liar” and “gave [her] to Nan”. By the time of this interview SF’s grandmother had died. Under cross-examination at the trial, SF recalled that her grandmother told her mother about her complaint, which was a few months before she spoke to the police in 2012.

10. [20]

    The Crown called Shenayah, who attended a primary school in Goulburn with SF from Years 2−6. This witness recalled that in 2012, when she and SF were in Year 5, SF said to her, “[m]y stepfather is sexually assaulting me … I didn’t want it to happen”. During that conversation SF said that she was planning to run away and that “[i]t happened a few times”. Shenayah recalled that, on another occasion, SF said that she did not want to go to her mother’s house “because my stepdad pulls down my pants and humps me”.

11. [21]

    The Crown called another friend of SF, Chenelle. Chenelle recalled SF stating that the applicant tried to sexually assault her but never “raped” her, that SF went to the toilet late at night and the applicant stood over her bed and tried to “molest” her.

12. [22]

    In her evidence, SD said that at some point around 2015 she was living with SF and her natural father. She recalled that SF said that the applicant had been sexually assaulting her, although she could not remember the exact words SF used.

The Summing-Up

1. [23]

   In opening to the jury and in closing address, the Crown Prosecutor referred to the evidence of complaint both as “evidence of the truth [of the complaint] and the consistency of the complainant’s conduct”.

2. [24]

   The Summing-up commenced on Friday 20 March 2020 and continued the following Monday 23 March 2020 and Tuesday 24 March 2020. On the Friday, the trial judge referred to the evidence of complaints by BB but directed the jury that they could only use it in assessing her credibility. Hence, the instructions to the jury on this topic included the following:

3. [25]

   Later in the Summing-up on the Friday, her Honour gave a similar direction in relation to the complaint evidence concerning EH including the emphasised portion above. After the jury were sent home for the weekend, the Crown Prosecutor queried the limited scope of these directions. The Crown Prosecutor circulated a draft direction overnight. The next morning, Counsel for the applicant told the trial judge that he had “no problem with [the direction] whatsoever”. Her Honour then directed the jury in accordance with the draft prepared by the Crown Prosecutor as follows.

4. [26]

   Her Honour reminded the jury that, on the previous day, they had been directed that the complaint evidence given by BB and EH could not be used “as any evidence that the assault occurred” and that the “Crown did not lead evidence as itself being able to prove the charge”. Her Honour then corrected that direction as follows in relation to BB:

5. [27]

   The trial judge then gave the same direction in relation to the evidence that EH complained to Mandi, Cheyenne, SD and Corey as well as the evidence that EH was in a distressed state when she told her friends what happened. As part of that direction, her Honour told the jury that it could use that evidence “as some evidence independent of the evidence given to you by [EH] in the witness box” and that the direction was “in addition” to the direction that had been given the previous day “about the Crown relying on the evidence as evidence that makes her account more believable”.

6. [28]

   Her Honour then addressed the case concerning the counts on the indictment that concerned SF. On the previous day the trial judge did not reach the point of giving any direction concerning the complaint evidence concerning her. Her Honour identified the complaint evidence concerning SF as the evidence that SF complained to her grandmother, Shenayah, SD and Chenelle. Her Honour then gave a direction to the jury about the evidence which included the following:

7. [29]

   Immediately after the trial judge gave this direction, her Honour asked, “[i]s there anything to be raised [about the complaint directions] before I move on?”, to which Counsel for the applicant replied “[n]o”. Her Honour completed the balance of the Summing-up on Tuesday 24 March 2020. The jury then retired to consider its verdict. There was no application for any redirection or further direction on behalf of the Crown or the applicant. The jury returned its verdicts the following day.

Conviction Appeal

1. [30]

   As noted, the sole ground of appeal is that the trial judge “erred in directing the jury that they could use the complaint evidence of the complainant as evidence of the truth of the facts” the subject of the complaint.

2. [31]

   The applicant’s submissions contended that the complaint evidence “should not have been described as evidence of the facts of the allegations with the authority of her Honour’s office and her description as it being the prevailing law”. The applicant relied on the judgment of Rothman J in SB v R [2020] NSWCCA 207 at [109]−[125] (“SB”). In SB, the trial judge, like the trial judge in this case, had directed the jury that it could use the complaint evidence “as some evidence independent of the evidence given to you of that incident by [the complainant] either in the JIRT interviews or in the pre-recorded evidence” (at [86]). In that part of the judgment relied on by the appellant, his Honour repeatedly (and correctly) noted that, if evidence of complaint is properly admitted without restriction, then it is evidence of the facts asserted (at [110], [111] and [116]; see also Evidence Act 1995 (NSW), ss 60 and 66(2); R v Bauer (a pseudonym) (2018) 266 CLR 56; [2018] HCA 40 at [89] and [92]; Kassab (a pseudonym) v R [2021] NSWCCA 46 at [339]−[340]). It follows that the ground of appeal as formulated is misconceived.

3. [32]

   However, in the passages from SB relied on by the applicant, Rothman J also referred to passages from the judgment of Gleeson CJ and Hayne J in Papakosmas v The Queen (1999) 196 CLR 297; [1999] HCA 37 (“Papakosmas”), where their Honours addressed the position at common law in relation to complaint evidence. Their Honours observed at [10] that “[e]vidence of complaint cannot constitute corroboration in the technical sense, because it is not independent of the complainant.” Based on that statement, Rothman J observed that “evidence of complaint is neither corroborative nor independent of the complainant” and that it followed that in that case the trial judge “erred in directing the jury that the evidence of the complaint was independent evidence” (SB at [127]). However, his Honour added that (SB at [128]−[130]):

4. [33]

   In SB Rothman J concluded that, upon a consideration of the Summing-up as a whole, the jury were not misled in that case as to the character or effect of the complaint evidence. In this case, with the complaint evidence concerning SF the trial judge also directed the jury (on Monday 23 March 2020) that just because “a person says something on more than one occasion does not mean that what is said is necessarily true or accurate”. The position is no different in substance with the complaint evidence concerning BB and EH. The complaint directions that her Honour gave on Friday 20 March 2020 in relation to their evidence included that statement. When her Honour returned to “correct” that direction on Monday 23 March 2020, it was made clear that it was in “addition to the direction” given the previous Friday. Thus, in relation to all three complaints, the jury were told that “the fact that a person says something on more than one occasion does not mean that what is said is necessarily true or accurate” and that a “false or inaccurate statement does not become more reliable just because it is repeated on more than one occasion”.

5. [34]

   It follows that SB does not provide any support for the contention that a miscarriage of justice was occasioned in this case by the reference in the Summing-up to the complaint evidence being “independent”.

6. [35]

   For my part I am doubtful that, even if it is considered in isolation, a direction to the jury that they could treat complaint evidence “as some evidence independent of the evidence given to by [the complainant] in the witness box” is erroneous. Considered in the context of this case, the direction appears to be simply pointing out that evidence of complaint that is broadly similar to oral evidence given by a complainant is also evidence of the events in question and that it has been given on an independent or separate occasion to the oral evidence adduced in the trial.

7. [36]

   The position was explained by Basten JA in Long (a pseudonym) v R [2021] NSWCCA 212 at [11]−[13] as follows:

8. [37]

   The sole ground of the conviction appeal is untenable. Rule 4.15 of the Supreme Court (Criminal Appeal) Rules 2021 (NSW) applies. I would refuse leave to raise the ground.

The Sentencing Judgment

1. [38]

   The sentencing judgment was comprehensive. Her Honour set out the maximum penalties and standard non-parole period for each offence as well as the facts of each offence in a manner consistent with the above table at [5]. Her Honour then described the various factors affecting an assessment of the objective seriousness of offences of this character before making the assessments set out in the table. There is no challenge to any of those assessments. Her Honour then confirmed that the applicant was not to be punished for the uncharged acts and that their significance was reduced to “plac[ing] the offences in context and … meet[ing] any suggestion that the offences charged and for which the offender was convicted were isolated acts on the offender’s part”.

2. [39]

   Her Honour addressed the applicant’s subjective case. The applicant was 49 years of age at the time of sentence. He was convicted of assault occasioning actual bodily harm in 2000, assault in 2006 and assault in 2015. He received various non-custodial punishments. Her Honour noted that count 4 was committed while the applicant was the subject of a bond under former s 9 of the Sentencing Act for one of those assaults. Her Honour found that his prior history meant that he could not “claim a history of good character”.

3. [40]

   The applicant was described by her Honour as having a “happy family home”. He left school after completing Year 8 because he was embarrassed about his appearance after breaking his nose playing football. Commencing when he was 15 years of age the applicant worked for 12 years at a supermarket before suffering a work injury. He re-trained as a bus and truck driver. He worked continuously thereafter. He had two significant relationships, being RB and Belinda. Her Honour noted that he had a number of significant health conditions for a person of his age including asthma, diabetes type 2, coronary artery stenosis, angina, poor blood circulation and impaired hearing. His time in custody involved pandemic restrictions which affected both his contact with family and access to medical care. Her Honour accepted that his medical conditions and the pandemic restrictions would make his incarceration “more onerous than would otherwise be the case”.

4. [41]

   Her Honour noted the effect of victim impact statements from BB, EH and SF. BB described the “very real long-term effects upon her” including suffering “confusion, shame and fear” as well as the “pain of overcoming a secret”, trying to overcome “hate, anger and confusion” as well her “continuous struggle with identity and to feel like a woman”. Her Honour noted that EH described a “life marked by drug and alcohol problems, anxiety, depression, suicidal thoughts and attempts”. EH said that she could not “look at her own body without being reminded of her pain” and felt “degraded and disgusted and angry”. SF described self-harming and attempting to take her own life. According to her Honour, SF “suffered from instability which has impacted her education and prospects”.

5. [42]

   Otherwise, her Honour noted the various sentencing factors. Her Honour found that the applicant did not have “good prospects of rehabilitation” and had “failed to accept and acknowledge the significant harm and damage done by his actions”. Her Honour noted that s 25AA of the Sentencing Act required the applicant be sentenced in accordance with the sentencing patterns and practices at the time of sentencing. Her Honour noted the necessity to consider totality. Her Honour rejected the suggestion that the sentences should be wholly concurrent but noted that considerations of totality meant they should not be wholly accumulated. As it was the applicant’s first time in custody and given the onerous conditions of his custody, her Honour made a finding of “special circumstances” for the purposes of s 44(2A) of the Sentencing Act.

The Sentence Appeal

1. [43]

   The only ground of appeal against sentence is that the sentence was manifestly excessive in the circumstances and a different sentence is warranted in law.

2. [44]

   Appellate intervention on this ground “is not justified simply because the result arrived at below is markedly different from other sentences that have been imposed in other cases” (Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64 at [58]). Instead, it is only warranted “where the difference is such that, in all the circumstances, the appellate court concludes that there must have been some misapplication of principle, even though where and how is not apparent from the statement of reasons” (ibid).

3. [45]

   In Lee v R [2020] NSWCCA 244 at [32] (Payne JA and Fagan J agreeing), I stated the following in relation to appellate review of an aggregate sentence on the ground of manifest excess:

4. [46]

   To an extent this passage allows for a bottom-up analysis of an aggregate sentence, ie, a consideration of the individual indicative sentences as part of the assessment of whether the aggregate sentence is manifestly excessive. However, any such approach is qualified by the last proposition, namely, the necessity to consider whether the aggregate sentencing reflects the total criminality involved. In Aryal v R [2021] NSWCCA 2 (at [50]), R A Hulme J observed that, at least where totality considerations are said to bear upon whether a sentence is manifestly excessive, “[r]ather than making an assumption that the indicative sentences are correct, and then endeavouring to assess the extent by which there has been some notional accumulation, the critical question is … ‘whether the aggregate sentence reflects the total criminality involved’”.

5. [47]

   The applicant’s submissions in support of this ground noted the sentencing judge’s assessment of the objective seriousness of the offending as mostly in the “mid-range” or “slightly above”. The submissions pointed to the strength of the applicant’s subjective case, his modest criminal history and his vulnerability in custody. The Crown’s submissions noted that the offences committed against BB were either committed in her home or when she was under the applicant’s care and involved an egregious breach of trust. The submissions also noted that the offences against EH involved serious forms of sexual abuse and necessitated some “notional accumulation” given the number of serious offences committed and the period of time over which they were committed. The Crown also noted that count 16 carried a long maximum sentence (being 25 years) and was committed against his stepdaughter, SF.

6. [48]

   Regardless of whether this ground of appeal is considered by either commencing with the indicative sentences or inquiring whether the aggregate sentence reflects the totality of the criminality involved, the outcome is the same in that the sentence was not manifestly excessive. Over a period that exceeds 15 years, the applicant used his position in a family, or at least his presence in a family home, to prey upon three vulnerable young girls. His depraved conducted left them devastated. The nature and time frame of the offending against EH was the most serious. For around a decade, the applicant exploited his position within her family and used her as a sexual object. He committed seven offences of having sexual intercourse with her which related to five different occasions.

7. [49]

   Each of the assessments of the objective seriousness of the offences and indicative sentences were open to the sentencing judge. When regard is had to the “potentials for accumulation” of the indicative sentences, then a total sentence exceeding that which is imposed is readily conceivable. Most significantly, the total aggregate sentence that was imposed very much reflects the total criminality of the applicant’s conduct.

8. [50]

   I would grant the applicant leave to appeal against his sentence but dismiss the appeal.

Proposed Orders

1. [51]

   Accordingly, I propose the following orders:

2. [52]

   DAVIES J: I agree with Beech-Jones CJ at CL.

3. [53]

   HAMILL J: I have had the advantage of reading the draft reasons of Beech-Jones CJ at CL. I agree with the orders proposed and with his Honour’s reasons.

4. [54]

   In relation to the conviction appeal I would make the following additional observations.

5. [55]

   There can be no criticism of the trial Judge for providing the direction of which complaint is now made. The direction was provided several months before this Court’s decision in SB v R [2020] NSWCCA 207, accorded with the draft direction then included in the Bench Book and was provided with the emphatic support of counsel then appearing for the applicant. After a somewhat confusing discussion when the matter was first raised by the Prosecutor, the parties considered the matter overnight. The following day, the Prosecutor provided a draft direction (MFI 26), of which counsel then appearing for the applicant said:

6. [56]

   The direction was flawed because of the inclusion of the word “independent”: see SB v R at [108]-[130] and [179], BS v R [2021] NSWCCA 39 at [36] and Long (a pseudonym) v R [2021] NSWCCA 212 at [12] and [78]. The hearsay evidence of the complaint made by the three children was not “independent” evidence. Its source in each instance was the particular complainant in question. However, in the absence of any order limiting its use under s 136 of the Evidence Act 1995 (NSW), it was evidence able to be used in support of the facts alleged by the prosecution. The trial Judge identified the evidence with precision and left it for the jury to determine whether the complaints (that is, hearsay representations) were consistent and supportive of the various allegations made against the applicant. Her Honour reminded the jury more than once, including after she had given the impugned re-direction, that:

7. [57]

   In the circumstances, there was no prospect that the jury misused the evidence because of the use of the word “independent” in the course of the directions.

8. [58]

   As to the sentence appeal, I accept that the aggregate sentence imposed on the applicant was a very severe one. However, it was a sentence imposed after trial (which is relevant in making comparisons with sentences imposed after a plea of guilty) and involved the repetitive sexual abuse of three separate children. The description employed by Beech-Jones CJ at CL at [48] is not inapposite. The ground of appeal cannot be upheld because the members of this Court might have come to a different conclusion as to the precise term of the sentence. A severe sentence was to be expected and I agree with the Chief Judge that the aggregate sentence was not “manifestly excessive” in the sense that it was plainly wrong or unjust, or manifestly beyond a legitimate discretionary range.