Bhatia v R

1. [1]

   BEECH-JONES CJ AT CL: Subject to what follows, I agree with the reasons of Hamill J.

2. [2]

   In relation to the conviction appeal, the evidence adduced at the trial, including the disclosures by GS, is set out in the judgment of Hamill J.

3. [3]

   By way of elaboration of the DNA evidence, the analyst called by the Crown, Ms Bates, referred to a number of samples taken from the inside of GS’s underpants which were tested for saliva.

4. [4]

   One of these samples yielded a positive test for amylase, a substance found in saliva. Ms Bates told the jury that this meant that “saliva may be present”. She explained that it was not definitive as to the presence of saliva because the experience in her laboratory was that positive tests for amylase can be yielded by the presence of “vaginal fluid, gorilla saliva and lemon juice”. Part of the cross-examination of Ms Bates concerned the relationship between testing for amylase and the presence of saliva. She explained that, under a protocol previously adopted in her laboratory, sweat, faeces and urine had also yielded positive results for amylase. It was suggested to her that there was a risk of a positive result from the presence of faeces or perspiration in GS’s underpants. Ms Bates said that the “a test under the current protocol” does not yield such results and “we don’t consider that that’s a likely scenario”.

5. [5]

   The sample from GS’s underpants that yielded a positive result for amylase also yielded a DNA mixture “from at least three individuals”. Both GS and the applicant could not be excluded as contributors that mixture. Ms Bates agreed that, if GS was assumed to be one of the contributors to this DNA mixture, then it was “greater than 100 billion times more likely … that [the] particular mixture …. originates from [GS], [the applicant] and an unknown, unrelated individual, rather than it originating from [GS] and two unknown unrelated individuals”. Another sample taken from GS’s underpants did not yield a positive result for amylase but did yield a mixture of DNA from at least three individuals, with GS and the applicant not being excluded as contributors.

6. [6]

   Although the assumption that GS was a contributor to the DNA mixtures was undoubtedly a reasonable one, one matter not explored at the trial was the utility of a statistical comparison to unknown unrelated individuals, given that there was also a reasonable likelihood that one of the contributors to the DNA mixture was a member of GS’s family as a result of transference.

7. [7]

   As noted by Hamill J, at the trial the Crown relied on Ms Bates’ evidence in support of count 1. On behalf of the applicant, it was submitted that Ms Bates’ evidence did not demonstrate the presence of saliva in GS’s underpants. It was also submitted that it was reasonably possible that, given the substantial involvement of the applicant in the domestic life of GS’s family, the potential presence of his DNA in these samples was explicable as innocent transference in the same way that it seems likely that DNA from other members of GS’s family was present in the samples.

8. [8]

   Insofar as the appeal against the applicant’s conviction points to the supposed inconsistency in the verdicts, being guilty on count 2 and not guilty on count 1, the position is the reverse of that at the trial, with the applicant now pointing to the strength of the Crown case on count 1 as exemplifying the lack of logic in the jury’s conviction on count 2. The applicant’s submissions pointed to the analysis of Simpson J, as her Honour then was, of inconsistent verdicts in R v TK (2009) 74 NSWLR 299; [2009] NSWCCA 151, especially the necessity to focus “upon any explanation, not for the convictions, but for the acquittals” (at [128]).

9. [9]

   In MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53 (“MFA”), Gleeson CJ, Hayne and Callinan JJ observed (at [34]):

10. [10]

    In the present case, there was “something additional” potentially available in relation to count 1, namely, the DNA evidence. However, as the applicant argued at the trial, there was scope for disagreement about its relative strength. With count 2, as the judgment of Hamill J demonstrates, there was also “something additional”, namely, GS’s immediate complaint and his relatively consistent and coherent recital of the events concerning that count thereafter, as opposed to what emerged with count 1. Bearing in mind the question asked by the jury, as noted by Hamill J at [82], the verdicts are reconcilable on the basis identified in MFA, namely, that it accepted GS’s evidence as honest and reliable but required “something additional” before convicting. In respect of count 1, it did not regard the DNA evidence as sufficiently persuasive. As to count 2, it considered that the evidence of GS’s immediate and subsequent complaints was sufficiently persuasive. I consider that the verdicts are reconcilable in this way and such a process of reasoning is not an “affront to logic and commonsense” (MacKenzie v The Queen (1996) 190 CLR 348 at 368; [1996] HCA 35).

11. [11]

    The balance of the conviction appeal is a complaint that the verdict on count 2 was unreasonable and could not be supported having regard to the evidence. I have reviewed the record of the trial. Like Hamill J, I am satisfied that there is not a significant possibility that an innocent person has been convicted (M v The Queen (1994) 181 CLR 487 at 493 – 495; [1994] HCA 63). Accordingly, I agree with his Honour that the appeal against conviction must be dismissed.

12. [12]

    In relation to the sentence appeal, I agree with Hamill J that grounds 2 and 3 must be rejected for the reasons given by his Honour. In relation to ground 4, I agree that it should be upheld. Hamill J has traced the history of s 21A(5A) of the Crimes (Sentencing Procedure) Act 1999 (NSW). Section 21A(5A) refers to the “factor concerned”, which appears to be a reference either to the offender’s “good character” or “lack of previous convictions”, both of which are mitigating factors in sentencing (s 21A(3)(e)–(f)).

13. [13]

    Generally, satisfaction that an offender’s good character or lack of previous convictions was “of [some] assistance to the offender in the commission of the offence” is not an especially high causal threshold to overcome. However, at the very least, it would involve the former making some material contribution to the latter. Presumably, in most cases in which the provision is invoked, the offender’s good character or lack of convictions will have played some material part in the offender having access to the victim(s).

14. [14]

    However, for the provision to be engaged, the Court must be “satisfied” of the relevant connection. In the context of an accusatorial system of justice, that places a practical, if not evidential, onus on the Crown to point to evidence of the relevant connection. In some cases, that evidence may have been adduced at the trial, although the fact that it might be relevant to sentence does not make such evidence relevant to proving guilt. Even if it is relevant to proving guilt, circumstances can be readily envisaged where such evidence might not be adduced or might be rejected at a trial, given the risks to all concerned of adducing evidence about character and prior convictions. Regardless, the Crown may seek to adduce evidence that engages s 21A(5A) at the sentence hearing.

15. [15]

    In this case, there was no evidence capable of satisfying s 21A(5A). As noted by Hamill J, at its highest the evidence of GS’s father was that he had known the applicant for 20 years and “trusted him”. Beyond that, there was no evidence that GS’s father made any assessment of his character or adverted to whether or not he had any criminal convictions. Moreover, GS’s father did not give evidence that, if he had believed the applicant was not of good character or knew the applicant had convictions for similar conduct or even for serious offences, then he would not have let him care for GS. If he had, then an issue would have arisen as to whether that evidence was sufficient to engage s 21A(5A). In the absence of such evidence it is not appropriate to address that issue in this case.

16. [16]

    I agree with the orders proposed by Hamill J.

17. [17]

    HAMILL J: On Tuesday 15 June 2021, after a trial before Judge Arnott SC and a jury in the District Court sitting at Parramatta, Kshetiz Bhatia (“the applicant” or Mr Bhatia) was found guilty of one count of having sexual intercourse with a child under the age of 10 years (count 2). The same jury found the applicant not guilty in relation to a second charge in identical terms (count 1). The trial held in June was a re-trial. In May 2021 a jury was discharged when it was unable to agree upon a verdict in relation to either count. On 3 September 2021, Judge Arnott sentenced the applicant to 10 years imprisonment with a non-parole period of 6 years.

18. [18]

    Mr Bhatia seeks leave to appeal against both the conviction and the sentence. He relies on the following grounds of appeal:

19. [19]

    I have concluded that leave to appeal should be granted but the appeal against conviction must be dismissed. I have also concluded that the appeal against sentence should be upheld and the applicant re-sentenced. These are my reasons for those conclusions.

An overview of the alleged offences, the early complaints, and GS’s interviews and evidence

1. [20]

   The complainant (to whom I will refer throughout by the pseudonym “GS”) was the infant son of family friends of the applicant. The applicant and GS’s parents met overseas around 15 years before the alleged offences. They moved to Australia some time later. GS was born in mid-November 2012. He referred to the applicant as “Uncle”. [1] For a period of about three years, the applicant cared for GS while the child’s parents were at work. This happened three or four times per week and the applicant would sometimes, or usually, stay overnight at GS’s family home.

2. [21]

   It was alleged that on 5 October 2019 the applicant and GS were lying on the same bed, having woken up from an afternoon nap, when the two charged acts of sexual intercourse occurred. At that stage, GS was aged 6 years and about 11 months. Count 1 alleged that the applicant put GS’s penis in his mouth. Count 2 alleged that the applicant caused GS to put the applicant’s penis in the child’s mouth.

3. [22]

   GS made a complaint to his mother when she returned from work that evening. That complaint was restricted to the allegation in count 2:

4. [23]

   The mother reported the conversation to GS’s father and the applicant left the home shortly thereafter in circumstances which were in dispute at the trial.

5. [24]

   In the early hours of 6 October 2019, GS’s mother reported the incident to police. In the 000 call, at 12:15am, the mother said the child told her “he put his dick in my mouth and he told me to, told me to touch it”. The mother also told the operator the child said:

6. [25]

   The mother gave evidence that GS told her in the car later that night that “he puts my son’s willy in his mouth”. This followed some confusion over the personal pronouns. This evidence was inconsistent with what was said to the operator in the 000 call. The cross-examination established:

7. [26]

   The mother said she was not sure why she said that.

8. [27]

   GS was taken to hospital for a medical examination at around 3am. An agreed statement of facts (Ex D) indicated that the examining doctor (Dr Hong) was told certain things by police, the child’s mother and by GS himself. Apart from the allegation that the applicant forced the child to fellate him, Dr Hong was told by GS’s mother that the applicant had “licked [GS’s] willy”. GS told Dr Hong:

9. [28]

   There was a formal “JIRT” [2] interview with GS on 8 October 2019 and a second interview, or a continuation of the first, on 11 October 2019.

10. [29]

    The applicant was arrested and charged on 14 October 2019.

11. [30]

    On 6 May 2021, almost a year and a half later and just days before the first trial was due to commence, police interviewed GS for the third time.

Prosecution case at trial

1. [31]

   The complainant’s evidence at the second trial was confined to the recordings of his JIRT interviews and the evidence he gave at the first trial. The prosecution also relied on the immediate complaint, the applicant’s “flight” on the evening of the initial disclosure, and on some forensic evidence. Reliance was placed on the graphic detail provided by GS, which was said to be unlikely in an account provided by a six or seven year-old child who was being untruthful.

2. [32]

   After the 000 call, the complainant spoke to a police officer (Ms Meyers) at the family home at about 1:30am on 6 October 2019. Ms Meyers woke GS up and spoke with him briefly. Her notes recorded that GS said, “A babysitter took care of me. He told me to put his whole dick in my mouth.” GS said this happened in his bedroom, two times, “yesterday and today”.

3. [33]

   The first JIRT interview was conducted in the afternoon of 8 October 2019. Almost immediately after the interview began, when GS was being asked about the difference between the truth and a lie, he (again) disclosed the conduct that formed the basis of count 2:

4. [34]

   The interviewer confirmed that his Mum’s “fake brother” was the applicant, to whom he referred as “[Uncle]”, and who he said “lived in” the house for about two years. GS confirmed that “last Saturday three days ago”, the applicant asked him “Do you want to lick me?” before taking his clothes off and making him “lick his boobers, um, boobs as well and his belly button and his tummy” and his “willy” and “butts”.

5. [35]

   When asked what happened next, GS responded:

6. [36]

   The physical gesture which GS made during this last part of the interview, where he indicated that he gagged when the applicant’s penis was forced into his mouth, was relied upon by the prosecution as supporting the proposition that this was a genuine recollection. The complainant said he was told to shower off “all [of] that licking” and was asked by the applicant to lick more, which he refused.

7. [37]

   The first JIRT interview was terminated when the complainant began to lose focus and appeared to be tired.

8. [38]

   The second JIRT interview was conducted three days later, on 11 October 2019. Again, very shortly after the interview commenced, GS described the offending conduct relating to count 2 as he was being questioned about whether he knew the difference between the truth and a lie:

9. [39]

   Putting aside the inconsistent version provided by the mother, the second of those answers appears to be the first time that GS said that the applicant’s mouth or tongue came into contact with his (GS’s) penis. However, at that stage, the evidence did not support an allegation of sexual intercourse (as defined in the Crimes Act 1900) because the act did not involve the introduction of the penis “into the mouth” of the other person (my emphasis). At the relevant time, “sexual intercourse” was defined as follows:

10. [40]

    GS described the events leading up to the incident which were not disputed by the applicant.

11. [41]

    GS said that they had fallen asleep together on his parent’s bed and when he awoke, he was [involuntarily] sucking on the applicant’s arm. GS said he was instructed by the applicant to remove his clothes and underwear. In response he said “Wash?” to which the applicant said no and began to lick him. He gave evidence of the following conversation”

12. [42]

    The italicised portion was the first complaint capable of establishing the first count.

13. [43]

    GS said that the applicant told him that God would punish him if he mentioned the licking to his parents. It seems that the complainant again made a physical gesture when describing the applicant licking “from here, um, right up to here”.

14. [44]

    In the second interview, in contrast to the first, there was confusion as to when these acts occurred and how often they occurred. The things described in the preceding paragraphs were in answer to a question about the “first time” it happened. GS said it was a “long time ago” and then described the incidents above. At the end of that sequence of answers, the interviewer attempted to confirm that “everything you’ve just told me is that the first time that that’s happened?”. However, GS said “Um, third time” and “So he’s only done it three times.” GS said the first time this happened was, he thought, “September”. Then he said he could not remember the date, and, finally, “I think it was --- … Saturday.”

15. [45]

    Other answers in the second interview implied the conduct was not isolated to one incident. For example, he said the applicant “always lets me lick his penis” and when describing something which may be consistent with swallowing ejaculate:

16. [46]

    By the time of the final JIRT interview, conducted shortly before the first trial, the complainant was eight years old. He said he forgot why he was there to talk to the detective. He was reminded that he spoke to the interviewers the day before and watched the earlier interviews. He then remembered it was about “that man doing inappropriate things to me”. He said this was a reference to the man “forcing me to do inappropriate things like put his, like, like, I don’t know, like suck my private parts and I really didn’t like it”. He said the man also forced him “to do the same things as he did to me”. This made him feel uncomfortable and he repeated his earlier assertion that the applicant said that “god would punish him”. However, in contrast to the earlier interview, he said that threat related to him declining to engage in the sexual acts, rather than as punishment for telling his parents.

17. [47]

    In this third interview, the complainant asserted more clearly that the conduct occurred on other occasions, not just on Saturday, 5 October 2019. However, again, the evidence was a little confusing. He said the Saturday was the third day in a row it had occurred:

18. [48]

    After questioning designed to confirm the complainant could count, the interviewer returned to this subject. After some prompting as to how GS knew or concluded that it happened over three days, he said (in answer to Q74):

19. [49]

    However, later in the interview the complainant seemed confused about this timeline, which is unsurprising given his age and the passage of time. GS repeated his account of the offending, with some additional detail, such as, “he forced me to lick his neck, like 20 times”. He said these “same things happened” on the second day and then the third, but on that occasion “the special thing was that I told Mum”. He said he could not remember when the “first day” was or what happened more specifically on the “second day”. Immediately thereafter, the following exchange took place:

20. [50]

    The complainant gave evidence over three days at the first trial which resulted in a hung jury. The recording of this evidence was played in the second trial. What follows includes only the more significant aspects of the evidence which may be relevant in resolving the issues on the appeal.

21. [51]

    The complainant was referred to his evidence in the second JIRT interview about a drop coming out of the applicant’s penis, his description of it as “not spicy” and his use a of a foreign language to describe its taste. He said the word he used meant “sour”. In their closing address to the jury, the Prosecutor relied upon this aspect of the child’s description of the events as “striking”.

22. [52]

    In cross-examination, it was put that the “inappropriate” conduct did not happen on the Saturday or on any other day. GS gave evidence:

23. [53]

    There were other confusing exchanges on this issue and on the child’s allegation that there had been 20 or 30 occasions of this kind of behaviour (which may have arisen from a misunderstanding on the part of trial counsel, who did not appeal on the appeal). At times it seemed GS was testifying that it only happened once. At others, he said it happened on more than one day but only happened on one occasion on each of those days.

24. [54]

    There was also cross-examination directed toward GS’s independent recall of the events. While he expressed some confusion, he seemed to agree that he would not remember without having watched the video of his earlier interviews.

25. [55]

    In the context of the evidence that the child woke up while he was licking the applicant’s arm “by accident”, GS was asked if he had dreams. The child agreed he had dreams and that he slept deeply. He was asked, “The things you say [Mr Bhatia] did to you, it was in your dreams. True or false?” The child said “False”. GS said it was true that he was licking the applicant’s arms when he woke up. He said that he did not remember whether he was licking his arms because he was dreaming.

26. [56]

    GS denied that he complained because he did not want the applicant to look after him anymore and wanted his parents to do so. However, he agreed that the applicant shouted at him when he did not eat the food he did not like.

27. [57]

    Putting aside any possible confusion over the number of times “inappropriate things” occurred, the child maintained the critical aspects of his evidence and did so quite forcefully.

28. [58]

    I have set out the evidence of what GS told his mother, the police officer and the doctor on the evening of 5 October 2019 and in the early hours of 6 October 2019. The complaint relating to the incidents comprising count 2 was almost immediate. It was repeated in a little more detail in the first JIRT interview on 8 October 2019.

29. [59]

    I have also set out the way in which the allegation in count 1 emerged, in the second JIRT interview, about six days later.

30. [60]

    It is relevant to observe that the evidence of complaint relating to count 2 was far more compelling, timely and consistent than the evidence relating to count 1.

31. [61]

    It is unnecessary to set out in detail the events that unfolded after disclosure was made to GS’s parents. As I foreshadowed earlier, there was a dispute as to exactly what happened. There was no dispute that the applicant left the premises very quickly. However, there was a dispute about why he left. The prosecution argued that the applicant took flight out of a consciousness of guilt relating to the child’s disclosure.

32. [62]

    The defence case was that the applicant left the premises because the child’s father attacked him physically. The applicant gave evidence of this. He said:

33. [63]

    The allegation was denied by the father but the applicant’s evidence on the issue was not shaken and received some support from his flat-mate Karanveer Pal Singh.

34. [64]

    Mr Singh said that the applicant complained to him about being “beaten up”, that the applicant was scared, and that his clothes were a “little bit torn” and “a little dirty”. Before the applicant arrived home, the child’s father came to the premises and “was in an angry mood”. The father told Mr Singh “his child was abused.”

35. [65]

    The trial Judge directed the jury in conventional terms about the caution with which such evidence should be treated.

36. [66]

    The prosecution also relied on evidence given by Alexandra Bates, a biologist from the New South Wales Forensic and Analytical Science Service. Ms Bates recounted the results of DNA testing on various items collected by the police. Investigating police obtained forensic samples from the applicant and the child and also did tape lifts or took swatches from clothing the child was wearing at the time of the incident.

37. [67]

    Most of the results were either negative, inconclusive, or unsuccessful. For example, no spermatozoa were located on a perioral swab, no saliva was located on a penile shaft swab and several tests were unsuccessful because there was insufficient DNA in the relevant sample. There were three relevant results, two of which were related:

    1. (1)

       A sample collected by a tape lift from the inside of the crotch of the complainant’s underpants could not be excluded as containing the applicant’s DNA.

    2. (2)

       Relatedly, there were presumptive positive tests for saliva on a swatch and tape lift taken from the “front crotch” of the complainant’s underpants. The former was a “weak positive”. There was no conclusive test that the substance detected was saliva.

    3. (3)

       A sample collected from a swab of the complainant’s back could not be ruled out as containing being that of the applicant.

38. [68]

    The prosecution invited the jury to conclude that these DNA results supported its case on count 1 or was, at least, consistent with the child’s account. Ms Bates explained that the testing was performed, in the context of alleged oral intercourse, because of the possibly that DNA (from saliva or elsewhere) may have been transferred from the complainant’s penis to his underpants.

39. [69]

    The cross-examination of Ms Bates established a number of possible innocent explanations for the forensic evidence. It focused on the inconclusive nature of the results, the close proximity in which the two parties lived and the possibility of secondary transfer.

Defence case at trial

1. [70]

   Mr Bhatia gave evidence. He provided a blanket denial of the charges. He said there was no sexual interference of any kind with GS.

2. [71]

   The defence case was that the complaint was false. Various motives were put to the complainant in cross-examination. This included that the applicant made him eat food that GS did not like and would shout at him when his parents were not home. While the child agreed with the facts behind this cross-examination, he did not accept that this motivated him to make false allegations against the applicant. Another defence theory, put in part of the cross-examination reproduced above, was that the child may have dreamt about the things of which he complained. It was inferred, but not accepted by the child (who said he didn’t remember) that he was dreaming at the time he was, unconsciously, licking the applicants arm as he woke up.

3. [72]

   The defence rebutted the prosecution argument that the sexual detail provided by the child by reference to the fact that his iPad was restricted because he had accessed “inappropriate” videos. Reliance was placed on evidence provided by the child’s mother in cross-examination:

4. [73]

   In terms of the timeline of events, the applicant agreed he was caring for the complainant on the Friday and Saturday (4 and 5 October 2019). However, he said he was not there on the Thursday. He agreed he and the child had taken a nap together and that GS was licking his arm in his sleep.

5. [74]

   It is clear, from the verdict on count 2, that the jury rejected Mr Bhatia’s evidence that there was no sexual interference of any kind with GS.

The summing up and deliberations

1. [75]

   No complaint was made on appeal as to the content of the summing up. It was orthodox, concise and balanced. It commenced on Wednesday, 9 June 2021 and continued until Thursday, 10 June 2021. At 1:00pm on that date, the jury retired to consider its verdict. It sent a note asking a question during the course of that afternoon, and this was answered in a non-controversial way at 3:54pm. The jury was allowed to disperse at 4:16pm. The Court did not sit on the Friday and the following Monday was a public holiday. The deliberations continued on Tuesday, 15 June 2021 and the jury returned its verdicts at 12:14pm on that day.

2. [76]

   The following parts of the summing up are of significance in considering the single ground of appeal against the conviction.

3. [77]

   The jury was given clear directions as to the onus and standard of proof, the elements of each offence, and the particulars of the allegation which were said to support each charge.

4. [78]

   The jury was given the following directions in relation to the separate consideration of each count and the impact that an acquittal on one count might have on its consideration of the other:

5. [79]

   The jury was directed that the evidence of “other incidents” or “other acts” in the days leading up to 5 October 2019 was adduced as “background to the incidents that are alleged to have occurred on Saturday, 5 October”. It was told the evidence was designed to allow the alleged events of that day to be understood in a realistic, and not “artificially isolated”, way. It was directed the evidence could not be used in any other way including by reasoning that “because the accused may have behaved in a certain way or on a particular occasion, he must have behaved in that way or a similar way on the occasion giving rise to the charge or charges on the indictment.” Similarly, it was forbidden from reasoning that the evidence of other acts could establish the applicant was “the type of person who would commit the offence or the offences with which he [has] been charged.”

6. [80]

   The jury was directed correctly as to the use of evidence of the applicant’s good character. It was instructed that if it rejected the applicant’s evidence, it should put that evidence to one side and focus on whether the evidence the jury did accept “proved the guilt of the accused beyond reasonable doubt.”

7. [81]

   As to the evidence of complaint, the jury was directed as follows:

8. [82]

   The question the jury asked on the first day of its deliberations was in the following terms:

9. [83]

   After discussion between his Honour and counsel, the question was answered as follows:

(b) The guilty verdict was otherwise unreasonable taking into account the whole of the material available

1. [84]

   While the second particular in the ground as framed suggests that the Court might overturn the guilty verdict on the basis of deficiencies, inconsistencies and improbabilities in the evidence more generally, the focus of the ground was on the apparent factual inconsistency between the acquittal on count 1 and the conviction on count 2. It was submitted that any reasonable doubt that existed as to count 1 ought to have resulted in a doubt about the allegation in count 2.

2. [85]

   The task of an appellate court faced with a ground arising out of “mixed” verdicts of guilty and not guilty in the same indictment has been considered in many cases. [4]

3. [86]

   Ultimately, the test is one of logic and reasonableness. If the acquittal(s) can only be explained by doubts concerning a single witness’s credibility, and there is no logical reason why that doubt ought not to have applied to the other counts, this Court will intervene because the conviction(s) on the other count is (or are) unreasonable. The High Court emphasised in MFA v The Queen at 618 that:

4. [87]

   The investigation is to be conducted “in the context of the system within which juries function, and of their role in that system”. [5] The High Court has emphasised that an appellate court should not too readily conclude that mixed verdicts are “inconsistent in the relevant sense” or that a jury has compromised its function. [6]

5. [88]

   None of the foregoing is to underestimate the role of this Court and its duty to examine the record of the trial to ensure that the guilty verdict does not represent a possible compromise or otherwise fails the test of reasonableness. If there is no explanation for the acquittal other than that the jury entertained a reasonable doubt about the credibility of a single witness, and that doubt damaged the credibility of the witness in respect of all counts so that the doubt must logically flow on to the other counts, the Court must intervene. [7]

6. [89]

   The inquiry may go beyond an examination of the evidence. As Simpson J (as her Honour then was) put it in R v TK at 321:

7. [90]

   The reference to “insight” and to “Mackenzie” are references to the judgment of Gaudron, Kirby and Gummow JJ where their Honours said at 365:

8. [91]

   In R v TK there were troubling communications from the jury and the response from the trial Judge was “ill advised” and did not assist the jurors in reconciling their differences in a calm and rational way. [8] The communications from the jury formed part of inquiry as to whether the verdicts were unreasonable or represented a compromise. In spite of those concerns, this Court decided the trial was not unfair and that there was a rational explanation for the mixed verdicts. [9]

9. [92]

   In the present case, there was no communication from the jury, or other indicator outside of the evidence, that suggested that the jury was divided or may have reached the differing verdicts as a result of compromise.

10. [93]

    In terms of Mr Moutasallem’s extensive and helpful analysis of the evidence to support the submission that the verdict was unreasonable in a more general sense, my examination of the evidence leads me to conclude that the prosecution case was quite strong. In a case such as this, it is not unusual for the prosecution to rely almost entirely on the evidence of a single witness. While there was no “independent” evidence to support the child’s testimony, his complaint (in respect of the second count) was spontaneous and consistent. Further, his descriptions of what happened were, as the Prosecutor submitted at trial, quite graphic and compelling. Assessing the matter at this distance, GS’s indication and description of “gagging” was a somewhat unusual feature of the case and a believable description of the events.

11. [94]

    The child made appropriate concessions when propositions were put to him in cross-examination. This included suggestions to the effect that he was unhappy being cared for by the applicant. However, he denied that this caused him to concoct a false account. The defence explanation for his knowledge of sexual matters was unpersuasive and the jury was entitled to reject the suggestion that his evidence arose from his dreaming about the events. There was no evidence to support this case theory.

12. [95]

    While the applicant relied, quite properly, on some confusion in GS’s evidence, I accept (generally) the respondent’s written submission:

13. [96]

    Some reliance was placed on this Court’s decision in Curran v R [2020] NSWCCA 171 but the cases are not analogous. In Curran v R, the critical feature was that the complainant had denied repeatedly and over many years the sexual act upon which counts 3 and 4 relied (fellatio). There was no similar feature in the present case.

14. [97]

    I do not accept that the guilty verdict on count 2 was unreasonable or unable to be supported based on the asserted deficiencies in the evidence. Most of these are readily understood by reference to the tender age of the principal witness. As I have said, my assessment is that the case against the applicant on count 2 was quite strong.

15. [98]

    The applicant’s submission that the guilty verdict was unreasonable in the sense that it was factually inconsistent with the acquittal on count 1, or that the doubt experienced in relation to count 1 ought to have led to a doubt in relation to count 2, has more force. As I have said, this was the real focus of Mr Moutasallem’s careful submissions.

16. [99]

    However, it was open to the jury, obeying the directions with which it was provided, to differentiate between the two allegations.

17. [100]

    It is true that the forensic (DNA) evidence had more capacity to support the allegation in the first count. However, on close examination, that evidence was essentially neutral or capable of innocent explanation. The DNA, consistent with that of the applicant, found on the crotch of GS’s underpants was not established (conclusively) to be saliva and the possibility of secondary transfer was real in the circumstances. The jury was correct if it decided not to treat the forensic evidence as corroborative of the allegation in count 1.

18. [101]

    On the other hand, there was a stark difference in the history of complaint as it related to the two counts.

19. [102]

    GS made a series of early and reasonably consistent complaints that he was prevailed upon to perform fellatio on the applicant. The first of those complaints was made to his mother at the first opportunity after she arrived home from work. It was repeated when GS was woken by the police officer a few hours later. Similar things were said to the doctor and the allegation formed part of his first JIRT interview. All those things were able to be considered by the jury in assessing whether the allegation in count 2 (but not count 1) was established beyond reasonable doubt.

20. [103]

    In contrast to that consistent body of evidence, the allegation in count 1 only arose with any degree of clarity in the second JIRT interview held on 11 October 2019, that is some six or seven days after the incident. While the jury was directed that it could also take that evidence into account in considering its verdict on count 1, and that there might be good reasons for the delay in making the allegation, the complaint evidence on this count was far less persuasive.

21. [104]

    It is apparent that the jury obeyed the directions to consider each count separately and applied the onus and standard of proof to the evidence relating to each count. It was provided with careful directions as to the way in which the complaint evidence could be used and the mixed verdicts suggests that those directions were followed assiduously.

22. [105]

    The acquittal on count 1 was explicable by a proper application of the onus and standard of proof in circumstances where there was a delay in complaint about the allegation upon which that charge was founded.

23. [106]

    The verdicts were not inconsistent in any relevant sense. There were no indications that the jury compromised its function.

24. [107]

    Taking into account the acquittal on count 1 and the various deficiencies in the evidence to which counsel drew the Court’s attention, I do not accept that the guilty verdict is unreasonable or unable to be supported.

25. [108]

    The arguments were not without substance and leave to appeal should be granted. However, I would reject ground 1 and dismiss the appeal against the conviction.

The application for leave to appeal against the sentence

1. [109]

   The applicant was sentenced to imprisonment for 10 years with a non-parole period of 6 years. The offence for which the applicant was convicted carried a maximum penalty of life imprisonment and a standard non-parole period of 15 years. [10] The applicant was not entitled to any reduction for pleading guilty but was not to be punished for defending the charge.

2. [110]

   His Honour found that the offence fell “slightly below the middle of the range” of offences of its kind. This finding, which was not challenged on the appeal, was based on a number of considerations including (as summarised by the respondent in its written submissions):

3. [111]

   The sentencing Judge found that there was no evidence of remorse, an inevitable finding given the applicant’s evidence at trial and the lack of evidence of remorse on sentence. A sentencing assessment report (“SAR”) confirmed that the applicant continued to deny “culpability for his crime” and “has no insight into the triggers that led to the offence”. The author of the SAR went on to say the applicant “has no insight into the impact of his offence on his victim” and his only concern was the impact of the conviction on himself.

4. [112]

   Despite the lack of remorse and insight, his Honour found that the applicant’s prospects of rehabilitation, and of not re-offending, were reasonable. This was based on Mr Bhatia’s lack of a criminal history, his “[adherence] to pro-social conventions throughout his life” and the fact that “he has been industrious with study and work”, matters that were canvassed in a report prepared by Jason Borkowski, a forensic psychologist.

5. [113]

   The primary Judge made a substantial reduction to the non-parole period upon his finding of “special circumstances” pursuant to s 44 of the Crimes (Sentencing Procedure) Act. That finding was based on:

6. [114]

   I turn to consider the proposed grounds of appeal against the sentence.

Ground 2: The sentencing Judge erred in finding that the applicant did have the complainant fellate him on an occasion before Saturday, 5 October 2019

1. [115]

   This first ground of appeal is based on the following passage in the sentencing judgment:

2. [116]

   His Honour went on to reject a submission that this finding was contrary to the jury’s verdicts and to stress that he did not take the finding into account as an aggravating feature. His Honour was conscious of the fact that the applicant was “only [to be] sentenced in respect to the offence of which the jury found him guilty.”

3. [117]

   On appeal, Mr Moutasallem (who did not appear at the trial or on sentence) did not suggest that the finding was inconsistent with the jury’s verdict. Rather, he stressed the confusing and inconsistent accounts provided by the complainant and the fact that it was a finding adverse to the applicant and, accordingly, had to be made to the criminal standard, that is beyond reasonable doubt. It was submitted that the evidence was so unsatisfactory that it was “not open” to make the finding beyond reasonable doubt. (I will put aside any controversy as to the standard of review and deal with the submission on its terms).

4. [118]

   I have set out some of the relevant parts of the complainant’s evidence in dealing with the conviction appeal. It is correct that the child’s evidence as to other, earlier acts was somewhat confusing and that there were apparent inconsistencies as to the number of times it happened. The sentencing Judge did not act on parts of the child’s evidence, such as his evidence that the applicant “always lets me lick his penis”, that the first time it happened was “a long time ago” or that it happened on three consecutive days. Similarly, the Judge did not refer to the evidence that the applicant licked his penis (and other intimate parts of his body) “like 20 or 30 times”.

5. [119]

   However, the infelicities in the evidence had to be considered in the context that it was given by a 6- or 7-year-old child. It was clear, as Judge Arnott said, that the child asserted that the incident on the Friday was not the first, or only, occasion when such conduct occurred. The language the child used throughout his evidence suggested strongly that there was at least one earlier incident.

6. [120]

   Judge Arnott presided over the trial and said the witness “made a good impression” on him. I am not persuaded that his Honour fell into error in making the finding that he did. While he did not couch his findings in those terms, I have no doubt that his Honour applied the criminal standard to the issue and the submissions were framed (correctly) on an assumption that his Honour made the impugned finding beyond reasonable doubt.

7. [121]

   I would reject ground 2.

Ground 3: The sentencing Judge failed to have regard to the applicant’s conditions of protective custody in a general sense

1. [122]

   The language of this ground appeared to be taken from the judgment of Ierace J in BR v R [2021] NSWCCA 279, which was quoted in the applicant’s written submissions. Ierace J (with whom Payne JA and Davies J agreed) upheld a single ground of appeal that the sentence imposed was manifestly excessive. The judgment identified a number specific errors in the approach taken in the District Court. This included the sentencing Judge’s approach to a psychologist’s report and to evidence of the offender’s more onerous conditions of incarceration. In the latter context, Ierace J said:

2. [123]

   At [123] and following, Ierace J criticised the sentencing Judge’s comment that “the applicant’s circumstances of imprisonment were no different than for other sex offenders and thus did not warrant mitigation”. This approach was not consistent with observations of this Court, including those by Bathurst CJ in the case of Zahab v R [2021] NSWCCA 7 at [47]-[50].

3. [124]

   The present case is very different.

4. [125]

   First, Judge Arnott did not make the kind of findings of which this Court was critical in BR v R, namely that the conditions of incarceration were the same for other sex offenders. Secondly, while Judge Arnott did not deal expressly with the protective custody arising from the nature of the crime, his Honour was very conscious of the more onerous conditions of incarceration faced by the applicant. His Honour made specific reference to the restrictions arising from the COVID-19 pandemic, the applicant’s circumstances of isolation and lack of support while in custody, and his health difficulties including the symptoms of being an insulin-dependent diabetic. As I have observed, his Honour made a substantial reduction to the non-parole period partly because of these onerous conditions.

5. [126]

   I am not persuaded that his Honour disregarded the conditions of custody or ignored the evidence and submissions that the applicant was in protective custody.

6. [127]

   I am unable to uphold ground 3.

Ground 4: The sentencing judge erred in finding that the case fell within s 21A(5A) of the Crimes (Sentencing Procedure) Act thereby depriving the applicant of a mitigating factor for consideration

1. [128]

   The final proposed ground of appeal against the sentence imposed on the applicant raises questions about the scope and operation of s 21A(5A) of the Crimes (Sentencing Procedure) Act.

2. [129]

   Before addressing those questions, it should be stated emphatically that whether the section attaches to a particular sentencing exercise will turn on the facts and circumstances of the case. It is inappropriate to attempt to lay down prescriptive rules. The terms of the provision mean that, while some cases will clearly be caught by the section, and others clearly will not, there are many cases on the fringes, where the issue may be difficult to resolve.

3. [130]

   The section provides an exception to the general rule that an offender may rely on their previous good character and lack of prior convictions as a mitigating factor on sentence. That is a long-standing rule in the common law and is also reflected in s 21A(3)(e) and (f) of the Crimes (Sentencing Procedure) Act. The common law has also long held that in some circumstances an offender’s previous good character is entitled to little or no weight. [11]

4. [131]

   Sub-section 21A(5A) was introduced in 2008 as part of a raft of amendments to sentencing legislation and the Crimes Act. [12] Sub-section (5A) commenced on 1 January 2009 and provides:

5. [132]

   The trial Judge made the following observations in resolving the dispute between the parties as to whether the section applied to the applicant’s case:

6. [133]

   I am unable to agree with the sentencing Judge that the present case is “more akin” to the case of O’Brien v R than to AH v R. I have reached the contrary opinion. For one thing, the issue was not directly raised in O’Brien v R, whereas it was subject to a ground of appeal in AH v R. There were also some factual differences between the cases.

7. [134]

   In O’Brien v R the issue was not the subject of a ground of appeal. The grounds in that case were that the Judge wrongly applied a two-stage approach to sentencing and that the sentence was manifestly excessive. Those grounds were rejected and the comments made by Adamson J (with whom Hidden and Latham JJ agreed) were made in the context of considering those grounds and the sentence imposed on the applicant:

8. [135]

   Her Honour’s observations were obiter and framed in guarded language (that is, s 21A(5A) “arguably” applied). They related to the fact that the offences were premeditated, and that the offender made arrangements with the victim’s family to take her on outings when they would be alone. The applicant met the child when she was 9 years old through her grandparents and the offences took place when she was 14. The applicant was married with two children and had made valuable contributions to the local community through the rural fire service.

9. [136]

   In AH v R, the offender committed a number of sexual offences against his de facto wife’s 9-year-old daughter over a period of 14-15 months. The sentencing Judge applied the provision in s 21A(5A), saying “his good character was a factor which was of assistance to him in the commission of these offences.” However, the basis of that finding was not explained. The applicant raised a particular ground to the same effect as that pursued by the applicant in the current appeal.

10. [137]

    Hidden J (who agreed with Adamson J in O’Brien v R, and with whom Beazley P and Fullerton J agreed) set out the submissions of the parties and resolved the issue in favour of the applicant:

11. [138]

    In R v Stoupe [2015] NSWCCA 175, the subsection was applied where the offender was a child-care worker and it could be assumed that he obtained that position by virtue of his good character. In Thomas v R [2019] NSWCCA 265 a “contingent” indication that the section would apply to a teacher in a Catholic school was not disturbed on appeal. The finding was provisional because the sentencing Judge did not find the offender to be a person of good character because of tendency evidence that had been led at the trial. R v Stoupe and Thomas v R are examples where the application of the section presented no real difficulty; it was obviously applicable.

12. [139]

    While they are not binding on this Court, there are a number of District Court decisions in which Judges at first instance have held (persuasively) that the situation is different in cases involving relatives, family friends and foster parents: see, for example, R v Flax [2014] NSWDC 268 (Cogswell SC DCJ) at [9], [32], R v NC [2020] NSWDC 547 (Lerve DCJ) at [46]-[52], R v DSM [2021] NSWDC 283 (Bourke SC DCJ) at [22], R v Sanchez [2021] NSWDC 561 (Montgomery DCJ) at [54] and R v Duncan [2022] NSWDC 543 (Tupman DCJ) at [62]-[64].

13. [140]

    For completeness, I mention the case of GG v R [2018] NSWCCA 280. That case involved a stepfather sexually interfering with a teenage girl. Payne JA expressed the view at [10] that s 21A(5A) did not apply because his Honour was not satisfied that “the offender’s good character of lack of previous convictions was of assistance to the offender in the commission of the offence”. Schmidt J at [92]-[99] came to the contrary view. The third member of the Court, Fagan J, at [144]-[145], did not attempt to resolve the issue. The judgments in GG v R demonstrate, first, that the issue was not an important one in the resolution of the appeal and, secondly, that the provision was not brought to the attention of the sentencing Judge.

14. [141]

    In the present case, the applicant was a family friend for many years before the child was born. There was nothing to suggest he befriended the family to gain access to the child. The child was yet to be born. The mother’s evidence (at trial) explained the nature of the relationship. She said she knew Mr Bhatia “back from my country” and met him on her wedding day in 2004. He was her husband’s friend. She agreed in cross-examination that the applicant was “like a brother” to her and “like an uncle” to GS.

15. [142]

    The child’s father said he met the applicant “about 20 years ago”. He thought the applicant was about 30 years old. They remained in contact when they came to Australia. In 2018 he and his wife arranged for the applicant to babysit because of their work commitments. It was an ongoing arrangement depending on clashes in their employment rosters. In cross-examination he agreed he had known the applicant for 30 years, that the applicant attended his wedding and was “like a brother” to him.

16. [143]

    Neither parent gave any evidence that the applicant’s character played any role in their decision to allow him to babysit their son. Apart from explaining the length and nature of their relationship, and that he was like a brother to them and an uncle to their child, neither provided any opinion that they thought he was a person of good character. There was no evidence that they were aware he had no prior convictions.

17. [144]

    The language of the section is quite broad and is apt to catch a wider range of offenders than those who trade on their trusted position and good reputation to gain access to unsuspecting children because the child or parent is misled into believing the perpetrator is a person of good character. Some obvious examples would include priests and other members of the clergy, politicians, teaches and community leaders. The section would also apply to offenders, with no other connection to the family, who act as babysitters or carers by providing references attesting to their good character and reputation. It may also apply, in some instances, to family friends and relatives, but only where there is evidence going beyond the fact of the relationship and which suggests that the offender’s good character or reputation played a role in assisting them to gain access to the child or to commit the offence. As I said at the outset, it would be wrong to be prescriptive and the application of the section turns on the facts of the individual case.

18. [145]

    The second reading speech does not cast a great deal of light on the scope of the section. The Attorney-General made the following observations about the provision:

19. [146]

    The reference to an offender “misusing his or her perceived trustworthiness and honesty” suggests there should be some active use of good character. There was no such evidence in the present case.

20. [147]

    I accept the applicant’s submission that the sentencing Judge erred in applying s 21A(5A) and in failing to take the applicant’s good character into account as a mitigating factor.

21. [148]

    I would uphold ground 4. Accordingly, it is necessary to consider the sentencing discretion afresh. If a less severe sentence is warranted the appeal against sentence should be upheld.

Re-sentencing

1. [149]

   In exercising the sentencing discretion afresh, I would generally adopt Judge Arnott’s findings on sentence. In particular:

   1. (1)

      The offences fall slightly below the putative mid-range of objective seriousness for the reasons given by his Honour. These are set out in summary form at [110] above. I would emphasise that the substantial breach of trust and the commission of the offence in the child’s home were significant factors in an assessment of the objective gravity of the offence.

   2. (2)

      Accepting the child’s evidence and adopting the sentencing Judge’s findings, the offence was not entirely isolated and there was a similar incident in the days preceding the charged offence. However, it is a not a case of ongoing offending over a lengthy period; the offence was opportunistic and spontaneous and was repeated on one occasion, probably the day before.

   3. (3)

      The applicant expressed no remorse and demonstrated no insight into his offending or the possible impact on the victim. The potential impact of such offences on victims is notorious and must be considered in sentencing.

   4. (4)

      The applicant has no previous criminal convictions and is a person of prior good character. His conviction for such a serious offence deprives him of this description but it remains a mitigating factor in the current sentencing exercise. [14] Section 21A(5A) does not apply and it is not a case, like many other child sexual assault cases, where there was a lengthy period of uncharged offending which deprives the offender of a finding of good character.

   5. (5)

      The applicant’s time in custody is particularly onerous due to his medical condition and his estrangement from his family and consequent isolation and lack of support. He has served a good deal of his sentence in protective custody and has endured the strictures involved in the prison authority’s response to the COVID-19 pandemic. This matter has particular relevance to the non-parole period but is also relevant to the total sentence. There is no guarantee in a case such as this that the offender will be released at the conclusion of the non-parole period.

   6. (6)

      I agree with the sentencing Judge that, given the specific circumstances of the offending and Mr Bhatia’s prior good character, that the applicant has reasonable prospects of rehabilitation. Given those matters, and the salutary impact of the inevitably lengthy period of imprisonment it is unlikely that he will offend again.

   7. (7)

      There are special circumstances allowing for a reduction in the non-parole period. These include the onerous conditions of incarceration, the fact that the applicant has not previously been incarcerated, and the desirability that the applicant has a substantial period of supervision and assistance in re-entering the community.

2. [150]

   I have kept in mind the maximum penalty and applicable standard non-parole period and used them as yardsticks in determining an appropriate sentence. I have considered the various purposes of punishment. [15] The need for the community to know that sexual crimes against young children will be met with stern punishment is a particularly important requirement in sentencing for offences of this kind. The sentence must also reflect the potential harm done to the victim and must ensure that the offender is adequately punished. This conduct must be denounced. There is also room for some moderation of the severity of the sentence to attempt to foster the applicant’s rehabilitation.

3. [151]

   While acknowledging the bluntness of the tool, and their limited utility, I consulted the statistics maintained by the NSW Judicial Commission. One interesting aspect of those statistics is that there are only 8 cases (of 76 recorded) in the database where the offender was charged with only one offence. The statistics demonstrate a wide range of custodial sentences which reflect the diversity of the offending. About 40% of all sentences fall between 6 and 10 years. There are rare cases (about 15%) where non-custodial options have been adopted and, at the other end of spectrum, about 10% of offenders received sentences of 20 years to life imprisonment. Not too much can be gleaned from this rather superficial analysis, but it does confirm that the sentence I have in mind is in line with the sentencing patterns reflected in the statistics.

4. [152]

   The sentence I propose is less than that imposed by the sentencing Judge. Accordingly, the appeal against sentence must be allowed. The interference with the proportion between the total sentence and non-parole period will not be as dramatic as that settled on by Judge Arnott SC because the sentence is substantially less and, ultimately, the non-parole period must also reflect the seriousness of the offending.

5. [153]

   I would impose a sentence of 8 years with a non-parole period of 5 years and 3 months. That sentence would be back-dated to the date Mr Bhatia was taken into custody.

Orders

1. [154]

   I would make the following orders:

   1. (1)

      Grant leave to appeal against the conviction.

   2. (2)

      Dismiss the appeal against conviction.

   3. (3)

      Grant leave to appeal against the sentence.

   4. (4)

      Allow the appeal against sentence.

   5. (5)

      Quash the sentence imposed in the District Court on 3 September 2021 and in lieu thereof, the applicant is sentenced to a non-parole period of 5 years and 3 months commencing on 14 October 2019 and expiring on 13 January 2025 with an additional term (balance of parole) of 2 years and 9 months expiring on 13 October 2027.

   6. (6)

      The applicant will be eligible for release to parole at the expiration of the non-parole period.

2. [155]

   N ADAMS J: I have had the advantage of reading the judgment of Hamill J in draft and agree with the orders proposed by his Honour for the reasons provided. I also agree with the additional reasons of Beech-Jones CJ at CL. With respect to the conviction appeal, I have reviewed the record of the trial and am satisfied that the verdicts on counts 1 and 2 are reconcilable in the way described by their Honours and that the verdict on count 2 is not unreasonable. As for the application for leave to appeal against sentence I agree with Hamill J that grounds 2 and 3 are not made out but I too would uphold ground 4 for the reasons provided. Again, I also agree with the additional reasons provided by Beech Jones CJ at CL in relation to ground 4.