Cabezuela v R

1. [1]

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

2. [2]

   WALTON J: On 11 April 2018, Maximo Cabezuela (“the appellant”) was arraigned upon an indictment, charging 27 counts of historical sexual offences committed upon four complainant sisters: MO (born in 1957); PO (born in 1961); JO (born 1963) and AO (born 1968) (there is an extant non-publication order with respect to the four complainants). Counts 1-4 on indictment related to MO. Counts 5-15 related to JO. Counts 16-19 related to PO and counts 20-27 related to AO.

3. [3]

   The offences were alleged to have occurred over 15 years, between 1966 and 1981, at the complainants’ home in the Illawarra Region, where they lived with their parents who had migrated from Spain in 1962. The complainants’ ages ranged from 3 to 13 years of age at the time of the offences and the appellant was aged 27 to 42 years of age during the offending. The offending was said to have begun when the appellant, the complainants’ maternal uncle, joined the household.

4. [4]

   The appellant pleaded not guilty through a Spanish interpreter and stood trial on all counts of the indictment in the Sydney District Court of New South Wales before his Honour Judge Blackmore SC (“the trial judge”) and a jury of twelve.

5. [5]

   On 11 May 2018, after deliberating for about 4.5 hours, the jury reached a unanimous verdict of guilty on all counts.

6. [6]

   The charges consisted of 21 indecent assault counts, three counts of carnal knowledge of a girl under 10, one count of rape and two counts of buggery.

7. [7]

   On 7 June 2019, the appellant was sentenced by Huggett DCJ (“the sentencing judge”) to an aggregate sentence of 28 years’ imprisonment, commencing on 9 May 2018 and expiring on 8 May 2046, with an aggregate non-parole period of 18 years imprisonment, commencing on 9 May 2018 and expiring on 8 May 2036.

8. [8]

   The offence, maximum penalty and indicative sentence for each count were as follows (counts 1-4 relate to MO; counts 5-10 relate to JO; counts 16-19 relate to PO and counts 20-27 relate to AO):

9. [9]

   The Crown prepared a helpful table setting out, in greater detail, the nature and circumstances of each offence and the offending, which is attached to this judgment and marked “Annexure A”.

GROUNDS

1. [10]

   The appellant brought a single ground of appeal against conviction pursuant to s 5(1)(a) of the Criminal Appeal Act 1912 (NSW). That ground of the appeal was expressed as follows:

2. [11]

   By grounds 2 and 3, the appellant also sought leave to appeal against the sentence pursuant to s 5(1)(c) of the Criminal Appeal Act. Those grounds were expressed as follows:

3. [12]

   The appellant relied upon the affidavit of Joseline Quinnones, his solicitor, sworn 23 April 2020, in support of ground 3, both as “fresh evidence” and “upon the usual” basis, if he were to be resentenced.

4. [13]

   The Crown relied upon the affidavit of Michael Jones, affirmed 28 April 2020, if the appellant were to be resentenced.

REASONS FOR SENTENCE

1. [14]

   At the outset of her reasons for sentence, the sentencing judge outlined the types of offences which the appellant faced, the date upon which the aggregate sentence imposed would commence (namely, 9 May 2018) and the making of an allowance for the period the appellant was on bail before entering into custody (a period of close to two years involving daily reporting). The sentencing judge then dealt with the circumstances of the offending against each of the complainants.

2. [15]

   As to MO and counts 1-4, her Honour described the offences as follows (each extract from the remarks on sentence has been adjusted to the style of this judgment):

   1. (1)

      Count 1: On 3 November 1966 MO was aged nine. She was in her bedroom getting ready to celebrate her first holy communion and was about to put on her dress. The appellant came in to her bedroom, stood behind her and pressed the front of his body against her back and touched her on her vaginal area on the outside of her underwear (count 1). MO felt terrified and uncomfortable. She heard a noise outside her bedroom door and the appellant left her bedroom.

   2. (2)

      Count 2: From around the age of nine MO began to suffer significant migraines. On one occasion in late 1966 or early 1967 when she was aged nine, she was lying on her bed facing the wall when the appellant opened her door and entered her bedroom. He got onto her bed, lifted her dress and put his hand inside her underwear, inserting his finger in her vagina (count 2). MO could feel the appellant's erect penis against her back. She felt scared and felt pain in her vagina and told the appellant several times words to the effect of "leave me alone, please do not hurt me”.

   3. (3)

      Counts 3 and 4: One evening during 1969 or 1970 when MO was aged 12 or 13, she was in the kitchen finishing her school work. The appellant came into the kitchen, shut the door and touched MO's breasts (count 3). He also touched MO on her vagina on the outside of her clothing (count 4).

3. [16]

   Her Honour found that between 1970 and 1973, the appellant lived in Victoria and had little contact with the family of the complainants. However, in 1973, he re-established contact with the family and moved back into the family home.

4. [17]

   Her Honour then discussed the offences committed against JO.

5. [18]

   As to counts 5 and 6, her Honour described the offending as follows:

6. [19]

   As to counts 7 to 10, her Honour described the offending as follows:

7. [20]

   Counts 11 to 13, her Honour described events in 1966, 1967 and 1968 in the following terms:

8. [21]

   Count 14 concerned events in 1970 when JO was seven and her sister, PO was celebrating her first communion. Her Honour found:

9. [22]

   As to count 15, her Honour found as follows:

10. [23]

    As earlier mentioned, counts 16-19 concerned PO. The offending arising in relation to counts 16 to 17 occurred when PO was 5 years of age (between April 1966 and April 1967) and was asked to get some potatoes from under the house. The appellant accompanied PO under the house. Her Honour described the circumstances of the offending as follows:

11. [24]

    Her Honour described the offending in counts 18 and 19, with respect to PO, in the following terms:

12. [25]

    Counts 20 to 27 concerned AO. Count 20 concerned circumstances when AO was five years old and was wearing her school uniform. Her Honour stated that the appellant sat her on his foot and bounced her up and down. He then wiggled his toe under her underwear and inserted his toe inside her vagina causing her pain and causing her to feel scared. As to count 21, her Honour found that, while AO was in year 3, she fell asleep on the lounge and woke up while the appellant was sitting on the lounge touching her on the vagina on the outside of her underwear.

13. [26]

    Her Honour described count 22 in the following terms:

14. [27]

    Her Honour described count 23 as the appellant grabbing AO’s hand and putting it on his penis in a bathroom. When she removed her hand, the appellant commenced to masturbate his own penis, instructing her to touch it at the same time.

15. [28]

    As to the remaining counts 24 to 27, her Honour described the circumstances of the offending as follows:

16. [29]

    Her Honour commenced the discussion of the objective seriousness of each offence with the following statement:

17. [30]

    Her Honour then stated that she would commence discussion of the objective seriousness of the offences by identifying the features relevant to the objective gravity of “many, if not all of the offences”.

18. [31]

    Age was a matter relevant to the assessment of the objective gravity of each offence. Her Honour found that a large number of the present offences were committed upon extremely young children, who were well below “applicable upper age threshold”, which was a matter of significant aggravation.

19. [32]

    Each offence occurred in the home of each complainant, and on some occasions, in her bedroom. This was a place where the complainants were entitled to feel safe.

20. [33]

    Her Honour considered that the position of the appellant was a significant matter of aggravation. She stated as follows:

21. [34]

    Her Honour found that, whilst the offences, when looked at in isolation, might appear opportunistic and spontaneous, each offence must be considered against the background of the nature and true relationship that existed between the appellant and each complainant. In that respect, her Honour found:

22. [35]

    The sentencing judge took into account the pain suffered by the complainants. She found that, on several occasions, the appellant’s actions caused physical pain, particularly in relation to counts 9, 19 and 20 but also in relation counts 10, 12, 13 and 22.

23. [36]

    The appellant’s conduct was particularly humiliating, demeaning and degrading. In particular, her Honour’s attention, in this respect, was focused upon counts 6, 11 and 16.

24. [37]

    The appellant used various methods of coercion and manipulation to commit the offences, and prevent complaint and further, sought to normalise the offending.

25. [38]

    Her Honour then turned to a consideration of “the objective seriousness of the particular offences considered individually as established by the evidence”. She looked at each category of offence as follows:

    1. (1)

       As to the three counts of carnal knowledge of a girl under 10 (counts 9, 12 and 19), her Honour assessed each as “extremely serious”.

    2. (2)

       As to the count of rape and two counts of buggery, her Honour found:

    3. (3)

       As to the 21 counts of indecent assaults upon a girl under the age of 16, her Honour found:

26. [39]

    Her Honour then dealt with the harm done to the complainants of the offences and the community. Victim impact statements were produced by MO, AO and PO. However, her Honour found that evidence did not establish that the impact on any complainant was sufficient to amount to a separate aggravating feature. Her Honour took into account the harm as being a factor referrable to the objective seriousness of the offences.

27. [40]

    Her Honour recognised the offences were historic in nature but rejected the contention that the delay in the complaints had caused some unfairness to the appellant, so as to ameliorate the appropriate sentence, particularly, as the delay in complaint was “to a large measure a result of the circumstances of what this appellant both said and did to these victims”.

28. [41]

    However, her Honour did take delay into account in a different context, as follows:

    1. (1)

       The appellant is permitted to demonstrate that he has not reoffended since the 1980s.

    2. (2)

       Her Honour took into account, but gave little weight, to the delay between the appellant being charged in 2016 and the “anxiety that may have been caused by him and the charges being determined by a jury”. There is no evidence that he had been left in a situation where he had spent decades of his life in anguish, fearful of the day when punishment would be imposed for his reoffending.

    3. (3)

       The appellant will serve his sentence in the later years of his life, which is considerably more onerous than a younger man. The sentencing judge took into account his increasing age and health concerns, although these could not be given ‘overriding consideration’.

29. [42]

    Her Honour found that pursuant to s 25AA of the Crimes (Sentencing Procedures) Act 1999 (NSW) (“the Sentencing Act”), the Court must sentence the appellant in accordance with the sentencing practices and patterns at the time of sentencing, not at the time of offence. Her Honour also found that the Court must be mindful, nonetheless, of the maximum penalty and any standard non-parole period.

30. [43]

    Her Honour then turned to the personal circumstances of the appellant, which were described as follows:

    1. (1)

       The appellant was 79 years of age at the time of sentencing. He lived in Spain until his twenties when his sister sponsored him to come to Australia, as he was the eldest sibling.

    2. (2)

       The appellant married in 1986 and remained married with no children. His parents were deceased.

    3. (3)

       He received little by way of education. Because his father had become ill, he had pressure on him to leave school to assist with his family’s financial situation. He had difficulties with the English language.

    4. (4)

       He had been employed in unskilled labour from a young age until his fifties, when the company he was working for closed. He did not seek further employment and was given a pension.

    5. (5)

       The appellant had periods of heavy drinking when he first came to Australia but stopped drinking and smoking in his late sixties.

    6. (6)

       Her Honour described the appellant’s medical history as follows:

    7. (7)

       Reference was made to the medical opinion of Dr Baker, the General Practitioner for the appellant. She described his opinion as follows:

    8. (8)

       As to the appellant’s mental health at the time of offending, her Honour accepted that aspects of the appellant’s upbringing were far from ideal and that he was somewhat deprived, including, with respect to, his education. His background, whilst adverse, simply cannot account for the repeated and appalling abuse inflicted on the four complainants. Her Honour found that, otherwise, there was no evidence before the Court to suggest that the appellant’s cognitive function was impaired by any underlying condition. There was no evidence of a diagnosis of a psychiatric or psychological condition and no history of mental illness or condition operative at the time of the offences. Rather, her Honour found that the appellant “knowingly engaged in a deliberate course of serious sexual abuse” and “completely disregarded and exploited the powerlessness and vulnerability of his victims for his own motivations”.

    9. (9)

       Her Honour further found that the appellant appreciated the wrongfulness of his conduct and on many occasions he used techniques to secure the complainants’ silence. Even without any real level of education, he was an adult who must have appreciated the seriousness of the offending.

    10. (10)

        The sentencing judge stated that the appellant had expressed concern regarding difficulty remembering where he had put things, confusion when he was thinking about different places and the names of people and common objects. He felt that this had worsened over time.

    11. (11)

        Her Honour then made reference to a number of medical reports as follows:

31. [44]

    Based on that material, her Honour found that she had taken into account the appellant’s present mental concerns when sentencing him. She stated “he undoubtedly will require ongoing medical treatment in custody to manage his conditions”.

32. [45]

    Her Honour found that the appellant was not contrite or remorseful for his offences for which he stands convicted. He had no insight into the gravity of his conduct.

33. [46]

    As to the risk of reoffending, her Honour observed that the appellant denied he had any specific sexual attraction to or sexual preoccupation with children or persons with childlike qualities. He had not reoffended since the last offence he committed. A risk assessment test conducted in relation to the appellant determined that he was in the very low risk range of sexual recidivism relative to other male offenders. Another risk assessment tool assessed the appellant as medium to low risk of reoffending. The sentencing judge found that the reality was that the appellant’s age and the sentence that will be imposed upon him makes the likelihood of his reoffending, as a practical matter, very low.

34. [47]

    Overall, her Honour considered that there was no genuine insight into his offending or the harm that he caused and found that the appellant had no “demonstrated genuine rehabilitation”.

35. [48]

    Her Honour noted that, the appellant had no criminal record, nor had he incurred any institutional infractions whilst in custody. His good character at the point when his offending started must, however, be of very little weight.

36. [49]

    A further consideration is that he and his wife had been ostracised by the Spanish community residing in Wollongong. The sentencing judge took into account that, “in a general way”, the gossip and talk amongst the community, as a consequence of the offending, as charged, but this did not entitle the appellant to “any amelioration of the otherwise appropriate sentence”.

37. [50]

    The sentencing judge took into account the fact that the appellant had no visitors, apart from legal visits, and that his wife had health concerns that affected her ability to attend gaol. This made his custody more onerous and that fact was taken into account.

38. [51]

    As to general deterrence, her Honour found that it had a significant role to play, given that the appellant has been convicted of a large number of sexual offences against four complainants, even though the appellant had not committed offences for decades.

39. [52]

    As to specific deterrence, the appellant’s age and confinement in gaol meant that this was not of particular importance.

40. [53]

    As to sentencing, the sentencing judge took into account that a number of the offences were committed during the one episode or incident. Her Honour stated that, “where a sentence for one offence could comprehend and reflect the criminality involved in another offence within the same episode notional concurrency may be appropriate”. However, her Honour found that:

41. [54]

    Her Honour recognised that the reality of the non-parole period she would fix was that, the appellant may not be alive at the date of the non-parole period arriving, and would “therefore be denied the opportunity to return to the community”.

42. [55]

    As to the provisions of s 25AA of the Sentencing Act, the sentencing judge stated:

43. [56]

    Finally, as to the fixing of an aggregate sentence, with an aggregate non-parole period that takes into account special circumstances, her Honour found:

That there had been a fundamental error of law going to the root of the Appellant/Applicant's trial by reason of the trial judge falling into jurisdictional error by finding that he had no legal basis to discharge a particular juror and as a consequence the Appellant/Applicant did not receive a trial according to law.

1. [57]

   The appellant contended that the trial judge had fallen into jurisdictional error by mistakenly denying the existence of jurisdiction: Craig v South Australia (1995) 184 CLR 163; [1995] HCA 58 at 177; Kirk v Industrial Court (NSW) (2010) 239 CLR 531; [2010] HCA 1 (“Kirk”) at [72]. It was submitted that the Court below had mistakenly denied the very existence of its jurisdiction, namely, the jurisdiction to discharge a juror under s 53B(d) of the Jury Act 1977 (NSW).

2. [58]

   The trial judge had denied that jurisdiction when he stated that, in the midst of grappling with a disclosure by a juror that she had legal training, “there can be no legal basis” for discharging the juror.

The Course of the Trial

1. [59]

   On 11 April 2018, the trial judge empanelled the jury, opening remarks were given by the trial judge and the Crown prosecutor commenced making an opening address when a juror raised a hand. When asked by the trial judge, “What’s the problem?” the juror stated, “I don’t think I can go through this trial”. The remaining jury were excused, the juror was sworn and questions were asked. In the result, the jury were discharged. A further jury were then empanelled on the same day and the trial judge made opening remarks.

2. [60]

   On 13 April 2018, the Crown prosecutor and defence counsel made opening submissions. The officer in charge was called to give evidence.

3. [61]

   On 16 April 2018, MO gave evidence.

4. [62]

   On 17 April 2018, AO commenced to give evidence in chief and a morning tea break was taken. On resumption, his Honour informed counsel, in the absence of the jury, that a juror had not been feeling well at morning tea and wanted to go for a walk, had become ill and did not return until 1:00pm.

5. [63]

   The trial judge advised that, the Court Officer had indicated the juror had found “it incredibly stressful and doesn’t feel she can go on”. His Honour determined to bring the juror before the Court (at about that same time, his Honour received a note with a medical certificate from the juror). (This juror shall hereafter be referred to as “the juror”).

6. [64]

   His Honour asked the juror whether she could continue “after today” to which the juror responded:

7. [65]

   The following exchange then occurred between the trial judge and the juror as follows:

8. [66]

   After some further discussion, there was the following further exchange between the trial judge and the juror:

9. [67]

   The trial judge then asked counsel whether there were any further questions for the juror. Neither counsel sought to ask any questions. The following exchange then eventuated:

10. [68]

    The remainder of the jury were then returned to Court. It was explained that one of their number was ill and would not return that day. The jury were asked to return the next day, 18 April 2018.

11. [69]

    The trial resumed that day. All jurors were present and AO was called to give evidence. Her evidence was completed. MO was recalled for further cross-examination. JO was also called to give evidence in chief. No issues were raised by counsel for the defence on this day, as to the circumstances of the juror on the previous day. The matter was adjourned to 19 April 2018.

12. [70]

    After some preliminary issues on 19 April, his Honour raised an issue regarding the juror and had an exchange with counsel, as follows:

13. [71]

    Further, his Honour observed:

14. [72]

    After the luncheon adjournment, the juror returned and further questions were asked. The evidence was not taken under oath.

15. [73]

    The juror stated she was a foreign lawyer with "ten years overseas experience in commercial and employment law and some - some other stuff". She also said she had done the legal practical training course at St. Leonards in 2015. She said that she was not admitted because it was too stressful for her, too expensive and that she was doing other different jobs. Both counsel questioned her as to her training and experience. She effectively said that she would be eligible for conditional admission in Australia, but in response to defence counsel, said she had not graduated from the College of Law in Australia, but had completed the subjects. The location of her overseas legal qualifications and experience was not entirely clear from her evidence. However, it appeared to have been "before former Yugoslavia".

16. [74]

    The questioning of the juror revealed:

    1. (1)

       The juror was not admitted as a lawyer in New South Wales or anywhere else. As she was not admitted, she could not hold an Australian practicing certificate.

    2. (2)

       The juror had 10 years’ experience as a lawyer overseas.

    3. (3)

       The juror completed the College of Law course in 2015.

    4. (4)

       The juror had lodged documents for admission and had an expectation her application would be approved and she would be admitted to the practice of law in the Supreme Court. The juror applied to the College of Law for a work experience exception.

    5. (5)

       The juror had no particular knowledge of Australian or overseas criminal law, save for any training at the College of Law, in which she was required to study criminal law. I accept the submission for the Crown that, whatever the training, it was very unlikely that it extended to the issues encountered in a trial such as the one here under examination and that any such training, as may be expected, was confined to basic skills in the practice of law.

17. [75]

    Subsequently, after the juror retired to the jury room, the trial judge entertained, inter alia, submissions as to whether the juror was excluded from jury service, in consequence of the provisions of cl 5A of Sch 1 of the Jury Act.

18. [76]

    The appellant’s counsel at trial raised various concerns about the juror. For example, it was mentioned that the juror was “up for admission” and had obtained all of the “education, achievements and knowledge” for the juror to be admitted. A further question raised was whether the juror had told the remainder of the jury that she was a lawyer and whether the jury may attach particular “credibility” to anything the juror may state in the jury room.

19. [77]

    Counsel for the appellant in the proceedings stated that trial counsel was “effectively exploring the discharge of that juror and consequently the jury”. However, as the Crown correctly submitted, defence counsel in the trial did not make an application for the trial judge to discharge the juror.

20. [78]

    After making the submissions at trial, to which I have referred, the following exchange occurred between defence counsel and the trial judge:

Consideration

1. [79]

   The appellant contended that there was a jurisdictional error “going to the root of the trial process, such that there was no trial according to law, and thus, there had been a miscarriage of justice within the meaning of s 6(1) of the Criminal Appeal Act. As earlier mentioned, it was contended that his Honour denied his jurisdiction to discharge the juror, under s 53B(d) of the Jury Act, by finding that he did not have ‘a legal basis for discharging the juror” and further, that “I need a legal basis for discharging her”.

2. [80]

   Part 7A of the Jury Act deals with the discharge of jurors. Section 53A(1)(a) provides for the mandatory discharge of a juror if it is found that the juror was mistakenly or irregularly empanelled because, inter alia, the juror was excluded from jury service. Schedule 1 of the Jury Act prescribes the classes of persons excluded from jury service. One such excluded category is an “Australian lawyer” (see cl 5A of Sch 1).

3. [81]

   It was common ground (and correctly so) that the juror did not fall within the meaning of the expression “Australian lawyer”, by virtue of s 6 of the Legal Profession Uniform Law 2014 (NSW) (“the LPUL”), which defines an Australian lawyer as, “a person admitted to the Australian legal profession in this jurisdiction or any other jurisdiction”. Jurisdiction is defined in the LPUL as “a State of the Commonwealth, the Australian Capital Territory or the Northern Territory of Australia” (see s 6).

4. [82]

   Section 53B of the Jury Act reposes a discretion in the trial judge to discharge a juror. Section 53B(d) provides that the discretion may be exercised in a trial if:

5. [83]

   In my view, the appellant has failed to demonstrate jurisdictional error upon the basis articulated in this ground of appeal, as developed in the submissions, with respect to the same.

6. [84]

   When attention is directed to the course of the trial, from the intimation by the juror as to her legal training, through to the statements of the trial judge relied upon by the appellant to demonstrate a denial of jurisdiction, namely, the Court’s need for a “legal basis” for discharging the juror, it is plain that his Honour’s remarks were directed to the absence of a mandatory statutory direction to discharge the juror, as found in s 53A of the Jury Act (because, as conceded by the appellant, the juror was not an Australian lawyer), rather than the limits of his discretion under s 53B(d).

7. [85]

   In my view, his Honour was aware that he had a discretionary power under the Jury Act to discharge a juror who was not otherwise excluded from jury service, in consequence of the operation of s 53A and Sch 1 of that Act. This is confirmed by his Honour’s observation that, “I can’t just discharge her without having reason under the Act”. Further, he had, in fact, a short time earlier, exercised such a discretion in discharging a juror (and the jury) (although it is not entirely clear if s 53B(d) of the Jury Act was engaged).

8. [86]

   The appellant also advanced a submission that the trial judge had engaged in jurisdictional error by “at least disregarding the limits” of his power under s 53B(d) of the Jury Act.

9. [87]

   Accepting that it is undesirable to mark out the bounds of jurisdictional error, as opposed to non-jurisdictional error (see Kirk at [71]), it would appear that this contention (which was not developed) was that the trial judge disregarded the nature or limits of his power. Based on the aforementioned analysis of the approach adopted by the trial judge, that submission cannot be accepted.

10. [88]

    The appellant further submitted that the trial judge also erred in the exercise of “his jurisdiction” by making no inquiry of the juror as to whether she could bring an impartial mind to the case, having regard to her legal training and other aspects of her evidence regarding that topic.

11. [89]

    The appellant submitted:

    1. (1)

       The reason a lawyer is excluded by legislation from serving on a jury and, if irregularly empanelled, becomes subject to mandatory discharge pursuant to s 53A(1)(a) of the Jury Act is because of the potential influence, deference and distraction other jurors may be exposed to when one of their number is a lawyer or has advanced legal training. Put another way, there is danger a jury may be influenced or act on a lawyer juror’s opinion about evidence and the law undermining the instructions of the trial judge.

    2. (2)

       In the circumstances of the appellant, the evidence revealed the lawyer juror was experienced, albeit in a foreign jurisdiction, had completed the College of Law and was on the cusp of formal admission as a practitioner of the Supreme Court of NSW. There was the appearance and practical danger the juror would use her training and knowledge of the law to influence other members of the jury in such a way that other jurors would defer to her and not bring an independent mind to the evaluation of the evidence. These were matters relevant to the exercise of jurisdiction in s 53B(d) of the Jury Act.

12. [90]

    These submissions travel well beyond the stated ground of appeal but, in any event, they should be rejected for the following reasons:

    1. (1)

       The defence counsel at trial did not make, as earlier mentioned, an application for the trial judge to discharge the juror.

    2. (2)

       The defence counsel never sought leave, when she had the opportunity to do so, to ask whether the juror had any expertise in the type of directions the jury were likely to be given in the trial or what knowledge of, or experience in, Australian criminal law she actually possessed. The juror was certainly never asked whether she had told the rest of the jury about what legal directions the Judge might give in the present case.

    3. (3)

       There would have been nothing improper, in any event, in the juror mentioning legal directions to the remaining jurors, providing the jury followed (as they were told by the trial Judge they were bound to do) his legal directions. In the absence of evidence to the contrary, this Court is bound to apply the presumption that the jurors did follow the legal directions of the trial Judge (see Gilbert v The Queen (2000) 201 CLR 414 at [31] (per McHugh J)).

That the aggregate sentence was manifestly excessive per se and because a number of indicative sentences were manifestly excessive inflating the aggregate sentence.

1. [91]

   The appellant contended that the sentence imposed by the sentencing judge was manifestly excessive.

2. [92]

   Whilst it was accepted that the appellant was convicted of “very serious sexual assaults”, given the age of the complainants and the objective level of criminality, it was contended that, when viewed globally or in the context of the indicative sentences imposed, the sentence imposed was “unreasonable” or “plainly unjust”, upon a number of bases.

3. [93]

   First, the appellant is 80 years of age and has no criminal antecedents.

4. [94]

   Secondly, the appellant remained in very poor physical health, as described in the sentencing judgment including, chronic heart failure, chronic renal failure and type II diabetes.

5. [95]

   Thirdly, whilst the sentencing judge found no psychiatric or psychological condition suffered by the appellant and no history of mental illness, Dr Reutons, in her report of 6 May 2018, had diagnosed the appellant with “minor neurocognitive disorder”. Later, Dr Sidorov, in a report, dated 18 November 2018, found the appellant’s neurocognitive disorder to have deteriorated such that a diagnosis of dementia was appropriate (see the report of Dr Chan, consultant psychiatrist, dated 14 March 2019).

6. [96]

   Fourthly, these medical conditions would be exacerbated by the appellant’s limited educational attainments and a lack of English language competency.

7. [97]

   Fifthly, the appellant will have to be medically managed in custody, as well as be the subject of ‘limited association’ or segregation.

8. [98]

   Sixthly, the appellant and his wife had become “poison” in the estimation of the local Spanish community.

9. [99]

   As a general proposition, ill health will be a matter capable of mitigating punishment only where it appears that imprisonment will be a greater burden on an offender, by reason of an offender's state of health or, where there is a serious risk of imprisonment having a serious adverse effect on an offender's health (R v Wilson (No 5) [2018] NSWSC 1077).

10. [100]

    It is submitted that, although her Honour was mindful of the two matters that self evidentially went to the issue of the appellant’s time in custody being more onerous, namely, the appellant's poor physical and deteriorating mental health and segregation, her Honour, by the length of the sentence imposed, fell into what may be described as Dinsdale v R error That is, the sentence was simply too severe (see Dinsdale v R (2000) 202 CLR 321; [2000] HCA 54).

11. [101]

    The appellant also submitted that there was an error in the “structure” of the sentences, as demonstrated by the indicative sentences imposed by the sentencing judge as follows:

    1. (1)

       A scrutiny of the indicative sentences concerning counts 1, 3 and 4, does not indicate they were excessive. Count 1 concerned the complainant MO and attracted an indicative sentence of 2 years and 6 months, that is, half of the maximum sentence available for that offence. The complainant was 9 years of age at the time of the offence. The appellant entered the bedroom of MO and pressed his body against her and touched MO on her vagina outside her underwear. Counts 3 and 4 attracted 2 years imprisonment, respectively, and concerned touching of the breast and vagina outside her clothing.

    2. (2)

       Count 7, concerning JO, was an episode of digital penetration and attracted an indicative sentence of 3 years and 10 months, in contra- distinction to a more serious episode of digital penetration in count 2, which attracted a lesser sentence of 3 years and 2 months.

    3. (3)

       Count 9 attracted an indicative sentence of 16 years. The appellant submitted that, this count was extremely serious. However, it was contended, in contradistinction, count 10, involving anal penetration, was an objectively more serious offence. That offence attracted only 10 years imprisonment. Also, in respect to count 12, which attracted a 15 year sentence, in contradistinction to count 9, which involved the same style of sexual assault, for which a 16 year sentence was imposed.

    4. (4)

       Count 18 concerned PO, aged 6, and an act of digital penetration that attracted 3 years and 6 months imprisonment, in contradistinction to count 2 that attracted 3 years and 2 months for an act of digital penetration.

    5. (5)

       Count 21, concerning AO, attracted 2 years and 3 months for touching the vagina of AO on the outside of her underwear. The same sexual assault on MO, in count 1, attracted a sentence 3 months longer.

12. [102]

    When proposing that the exercise of a sentencing direction resulted in a sentence which was manifestly excessive, the appellant must be taken as contending the sentencing process was attended by the last mentioned error in House v The King (1936) 55 CLR 499; [1936] HCA 40 at 505, such that a sentence is manifestly excessive where the applicant shows that the sentence is “unreasonable or plainly unjust”: Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 (“Markarian”) at [25]. This has to be established in a context where there is no single correct sentence and where judges, at first instance, are to be allowed as much flexibility in sentencing as is consonant with consistency of approach and application of principle: Vuni v R [2006] NSWCCA 171 at [33] per Hoeben J (as his Honour then was, with Tobias JA and James J agreeing); Markarian at [27] and Vale v R (2016) 77 MVR 194; [2016] NSWCCA 154 at [37] (per Hoeben CJ at CL, with whom Rothman J and R A Hulme J agreed).

13. [103]

    Reference should also be made to the judgment of R A Hulme J (with whom Bathurst CJ, Leeming JA, Hamill J and Adams JJ agreed) in Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221 at [443] as follows:

14. [104]

    It must also be stated at the outset of the consideration of this ground that indicative sentences are not themselves amenable to appeal. It is the aggregate sentence to which a ground of appeal of manifest excess relates. However, indicative sentences can be taken into account when considering the whole of the remarks on sentence. As Bathurst CJ said in Kerr v R [2016] NSWCCA 218 at [113]-[114]:

15. [105]

    It should also be noted that, the appellant does not impugn the conclusions reached by the sentencing judge, as to the objective seriousness of the 27 offences, with respect to which the appellant was convicted.

16. [106]

    Given that position, it is unnecessary to repeat in this consideration, the essential components of the judgment below, as to the objective seriousness of the offence, given the extensive summary provided earlier in this judgment. It is sufficient to make broad observations as to the objective seriousness of the offending (knowing his Honour also made findings as to aggravation).

17. [107]

    The offences involved extreme examples of sustained historic child sexual offending. Over the course of 15 years, the appellant preyed upon and repeatedly sexually offended four different female children, who were his nieces. The age of the victims ranged from 3 to 13 years. The offending was brazen, deliberate, determined and, at times, particularly disturbing. The offences on the indictment were not isolated and variously involved coercion, threats, manipulation and aggression.

18. [108]

    Courts 7-10 involved JO being vaginally and anally raped by the appellant, and being digitally penetrated, and forced to perform fellatio when she was only three years old. Courts 12 and 13, similarly involved JO being vaginally and anally raped when she was only 4 to 5 years old. Courts 18 and 19 involved PO being subjected to penile, vaginal and digital penetration when she was only 6 years old.

19. [109]

    Each offence occurred in the complainants’ home by a person the complainants were entitled to trust. Following the first few years of offending, the appellant was confronted with allegations made by MO, who made complaints to her parents, that the appellant had been sexually interfering with her. Following this complaint, the appellant left the family home for several years. However, he eventually reconnected with the family, only to continue his offending for many more years, armed, no doubt, with the belief that his offending would be largely unimpeded, even if a complaint was made.

20. [110]

    Particular submissions were made by the appellant as to consistency in the indicative sentences. Notwithstanding the contention of the appellant that, this aspect of the argument advanced under ground 2 of the appeal was directed to the ‘structure’ of the sentence, there is considerable force in the submission of the Crown that this aspect of the ground is not amendable to appeal as it is a mere challenge to the respective indicative sentences.

21. [111]

    I will briefly attend to the appellant’s submissions.

22. [112]

    In any event, the challenge to the indicative sentences advanced by the appellant simply cannot be sustained for the following reasons:

    1. (1)

       The indicative sentences for counts 1, 3 and 4 are not excessive. The appellant did not seek to impugn the indicative sentence for count 15 as being excessive but the circumstances of that offending are similar to those of count 1. The indicative sentence for each count is the same. As to the indicative sentence for count 1, when compared to counts 3 and 4, it may be observed that, the conduct of the appellant in each case was similar but MO was 3 to 4 years older and situated in the kitchen when the offences in counts 3 and 4 were committed. It may also be noted, in that respect, counts 3 and 4 occurred in the same episode, in which the appellant touched MO’s breasts and vagina, respectively, through her clothes.

    2. (2)

       The appellant made a number of submissions to the effect that the indicative sentences were disparate and pointed to five examples in this respect, none of which, in my view, were made out, for the following further reasons:

23. [113]

    Even when the reasons for sentence are looked at as a whole, I do not consider that the appellant’s challenge to the indicative sentences imposed by the sentencing judge can be sustained. I accept the submission of the Crown that the sentencing judge applied a clear and principled logic in distinguishing between the counts.

24. [114]

    There remains in the balance on the question as to whether the sentence was manifestly excessive, the issue of the subjective factors referred to by the appellant. There can be no doubt that the sentencing judge was troubled by this consideration, particularly, having regard to the age of the appellant and his various health concerns, which were summarised in her reasons for sentence and attracted particular attention in the submissions for the appellant under this ground.

25. [115]

    It may be accepted that these are significant subjective features in the appellant’s case. However, when proper weight is given to the objective gravity of the offences, the offending by the appellant, the absence of remorse by the appellant and allowing for special circumstances, as the sentence judge did, it may not be concluded, in my view, that the sentence imposed upon the appellant, having regard to the matters I have considered in dealing with this ground, may be found to be manifestly excessive.

26. [116]

    Ground 2 is rejected.

That having regard to the COVID 19 pandemic and its relationship to the applicant’s advanced age, poor health status and custodial arrangements the sentence is manifestly excessive. (The applicant seeks leave to introduce fresh evidence on this ground of application for leave to appeal)

1. [117]

   The appellant was given leave to amend the application for leave to appeal to bring in ground 3. As earlier mentioned, the appellant also sought to adduce the evidence of Joseline Quinones, which evidence was objected to by the Crown, save as to resentencing.

2. [118]

   The appellant relied upon the recent decision of this Court in Scott v R [2020] NSWCCA 81 at [163] (per Hamill J, with whom Brereton JA and Fagan J agreed) to contend that the evidence should be received as fresh evidence in order to avoid a miscarriage of justice.

3. [119]

   In substance, the appellant contended that the Court should grant leave to appeal against sentence on this ground because the circumstances of COVID-19 were such that the Court would conclude that the appellant suffered an additional burden by his imprisonment. This factor, when taken into account in sentencing, made the sentencing imposed on the appellant manifestly excessive.

4. [120]

   The appellant’s advanced age and poor health meant that he came under a category of vulnerable inmate, if COVID-19 should infiltrate the prison system and, in any event, it meant that he would be classified as an “at risk” inmate and subject to additional isolation, over and above the difficulties encountered by inmates arising from prison lockdowns, consequential upon the advent of COVID-19. Further, it was submitted that inmates generally, and the appellant, in particular, because of his age and health, suffered from anxiety or “a state of uncertain suspense” concerning the potential for transmission of the disease in prison.

5. [121]

   After restating the age and health conditions of the appellant, the salient features of Ms Quinones evidence, so far as it went to the instructions of the appellant, as to his incarceration of Hunter Correctional Centre, were as follows:

   1. (1)

      That there are no prison cells at the Hunter Correctional Centre and that all inmates share an open plan style accommodation with 25 other inmates, and currently there are approximately 400 other inmates.

   2. (2)

      That the gaol pods have either, 2, 3, or 4 inmates each and form part of the 25 open-plan cluster.

   3. (3)

      That since notification of COVID-19 by the authorities, he has been restricted as to his usual movements.

   4. (4)

      That prior to the pandemic the appellant usually enjoyed some exercise in the yard but is no longer allowed outside. He is very limited as to where he can walk or go.

   5. (5)

      The authorities at the facility have provided gloves and some sanitising liquid but no masks. According to the appellant, the staff are not wearing any masks.

   6. (6)

      He has been in isolation for the previous month and stated that he is not in isolation alone but has been identified as an "AT RISK" inmate and, therefore, has been in isolation with those inmates who are also classified as "AT RISK".

   7. (7)

      The appellant stated that he has not been tested for COVID-19 and is not aware of any testing being carried out inside the Hunter Correctional Centre at the moment.

   8. (8)

      That the appellant has been having trouble contacting his wife by telephone and that, since the pandemic, the calls seem to be cutting out on a regular and constant basis.

6. [122]

   Ms Quinones also deposed that she had a telephone call with Mr Troy Jurd, governor of the Hunter Correctional Centre, who informed her of the following:

   1. (1)

      He is unable to send any documents pertaining to formal gaol procedures as those documents would need to be obtained from “the legal department”.

   2. (2)

      Hunter Correctional Centre operates unlike other prisons, in a “dormitory-style” accommodation. Hence, it was considered a hotspot for COVID-19 and rapid measures were put in place to ensure inmate safety.

   3. (3)

      Hunter Correctional Centre acts on the advice of Justice Health.

   4. (4)

      The prison houses 400 inmates separated into 4 blocks.

   5. (5)

      Inmates over 65-years of age or inmates with health issues have been moved into their own block “D-block” and segregated from all other areas.

   6. (6)

      The appellant is classified as an “at-risk” inmate due to his age and health.

   7. (7)

      D-block comprises of 25 inmates in total who are isolated from the rest of the gaol, although they are in isolation for 24-hours a day – they are together in this block.

   8. (8)

      The block is large in size and has an outdoor space for exercise. Each inmate has their own private cubicle.

   9. (9)

      No personal visits are allowed. No one may enter the prison unless it is essential, that is, doctors and staff only.

   10. (10)

       This procedure has been in place for an estimated 3 weeks.

7. [123]

   Before moving on to an issue raised by the Crown in this respect, it may be noted that the Crown relied, for resentencing purposes, upon the affidavit, as earlier mentioned, of Mr Jones, an employed solicitor with the NSW Office of the Director of Public Prosecutions. Mr Jones provided a summary of the response by Corrective Services NSW (“Corrective Services”) to COVID-19, as conveyed by Mr Jeremy Tucker, the Director of Corrections, Strategy & Executive Services at Corrective Services. As mentioned, that summary was provided for the purposes of resentencing, but will provide context, given the issues raised by the appellant. The summary statement provided by Mr Jones was as follows:

8. [124]

   No evidence was advanced by either party as to the commencement or origins of the pandemic. However, it is clear that, if that manifestation of the virus corresponded with a report by China to the World Health Organisation Country Office in China in December 2019, the health and related issues associated with COVID-19 had not manifested themselves at the time of the sentencing of the appellant on 7 June 2019.

9. [125]

   There are three essential difficulties with the appellant’s submissions in this respect, which are fatal to this ground.

10. [126]

    First, the evidence sought to be led by the appellant is not fresh evidence, in the sense that there was any material relating to COVID-19 that was existing at the relevant time, the import of which was not known or not fully appreciated (see the discussion of authority below]). Thus, as a matter of general principle, the evidence would not be admissible in this appeal. As Adamson J (with whom McCallum JA and Johnson J agreed) recently stated in Borg v R; Gray v R [2020] NSWCCA 67 at [46]:

11. [127]

    Secondly, it would seem that the appellant contended that, notwithstanding the terms of the ground itself, that the evidence may be received on the application for leave by appeal as new evidence, that is, as an exception to the general rule (as stated in the judgment of Johnson J in Douar v R (2005) 159 A Crim R 154; [2005] NSWCCA 455 at [56]).

12. [128]

    In that respect, the appellant placed reliance on Scott v R [2020] NSWCCA 81, in which Hamill J (with whom Brereton JA and Fagan J agreed) stated at [163]:

13. [129]

    It may be observed that similar issues to those raised in this matter, visa via COVID-19, were raised in the sentence appeal in Scott. However, the Court was not required to consider the application of those principles because a conclusion had been reached that the sentence imposed was, in contrast to the present matter, manifestly excessive. Rather, the evidence as to the implications of COVID-19, on sentencing the appellant, was taken into account for the purposes of re-sentencing.

14. [130]

    In any event, the Crown was correct to submit that the authorities referred to in the passage from Scott, extracted above, did not provide a basis for the admission of new evidence on the implications of COVID-19 on sentencing, in the present matter, for the following reasons:

    1. (1)

       In R v Abbott (1985) 17 A Crim R 355, the Court accepted that evidence as to the subjective background of the applicant, which had not been put before the sentencing judge, was not fresh evidence but may be admitted into the evidence upon the basis that the appellant had not been competently represented at the sentencing proceedings. No such issue arises in this case.

    2. (2)

       In R v Smith (1987) 27 A Crim R 315 at 316, King CJ (with whom Cox and O’Loughlin JJ agreed) recognised that the proper purpose for fresh evidence, on an appeal against a sentence, was to bring before the Court facts which were in existence at the time of the imposition of the sentence but were not known to the sentencing judge or to explain facts which were before the sentencing judge, so as to put them in a new light. In this matter, it was held that evidence was admissible on the appeal as to the appellant’s diagnosed condition of Acquired Immunodeficiency Syndrome (AIDS) on the basis that the evidence explained “the full extent and implications of the appellant's condition of health which existed at the time of sentence”. The Court held that the events occurring since the sentence were admissible to show the extent and implications of the condition of health, which the appellant was in when he was sentenced including, specifically, the implications of the AIDS condition. In other words, the Court seemed to hold that the evidence as to AIDS gave greater understanding to the evidence of the health condition of the appellant, as adduced at first instance. Those circumstances have no counterpart in this case as it is not alleged that COVID-19 had any bearing upon his health conditions of the appellant as taken into account at the sentencing decision. Nor was the third ground argued on such a basis.

    3. (3)

       In Goodwin v R (1990) 51 A Crim R 328, Hunt J (with whom Grove J agreed) dealt with an application to receive additional material on appeal of a psychiatric character based upon a similar contention to that advanced in Abbott, namely, that the representation at the sentencing hearing was incompetent. The material was rejected because it did not comply with the test in Abbott. His Honour noted that there was cross-examination before the sentencing judge, which indicated that the legal representative for the applicant knew that the applicant had been having ongoing psychiatric treatment. Insofar as the additional material related to the applicant’s circumstances since he was sentenced, his Honour held that the material should be placed before the Executive Government, whose province it is to review the sentence imposed in the light of such material (at 330).

    4. (4)

       The case of R v Ehrenburg (Unreported, Court of Criminal Appeal (NSW), 14 December 1990) does not assist the present case as there was a concession to receive fresh evidence.

    5. (5)

       In Betts v The Queen (2016) 258 CLR 420; [2016] HCA 25 at [2], the High Court held that, as a general rule, the appellate court’s assessment of whether some other sentence was warranted in law was to be made on the material before the sentencing court and any relevant evidence of the offender’s progress towards rehabilitation in the period since the sentencing hearing. For the purposes of that assessment, an offender was not permitted to run a new and different case. The Court held the general rule did not deny the Court flexibility to receive new evidence where it was necessary to do so to avoid a miscarriage of justice (at [2]).

15. [131]

    Here, the evidence of COVID-19 was directed to the additional burden that the appellant may suffer in custody due to his age and health, a factor (in terms of age and health) which was given considerable weight by the sentencing judge. The new evidence relied upon by the appellant may not be utilised to impugn the sentencing judgment which is not otherwise susceptible to challenge on the manifest excess grounds. There is no challenge to the sentencing judge’s assessment of the subjective factors and I have found that the sentence imposed was, even having regard to a strong subjective case, not open to challenge on a manifest ground.

16. [132]

    The third and related consideration then is that, this is not a case where the receipt of the material in question may have impacted upon the sentence imposed upon the appellant. This is not a case where a comparatively short sentence may have been affected by new evidence of an additional burden which fell upon the appellant in the corrections system. Here, as I have found, the nature of the offences and the offending are of such seriousness that, even if substantially greater weight were given to these subjective factors of age, infirmity of health and additional custodial restrictions such as limitations on contact and exercise due to the effects of COVID-19, no different sentence would properly follow.

17. [133]

    For completeness, I note that the evidence before the Court from both parties, suggested that, despite initial fears, the prison system has not been the source of any outbreaks of COVID-19, such as the type that has occurred, for example, in aged care facilities. It may be accepted that the appellant would be anxious as to the present circumstances but the risk which he faces are moderated by the controls introduced by Corrective Services and the vigilant screening of staff serving prisons.

18. [134]

    I would reject the new evidence save to address the question of leave to appeal with respect to ground 3.

19. [135]

    This ground is rejected.

Conclusion

1. [136]

   In all the circumstances, I would dismiss the conviction appeal.

2. [137]

   I would refuse leave to appeal with respect to ground 2.

3. [138]

   I would grant leave to bring ground 3, given the nature of the issues raised, but otherwise dismiss the appeal.

ORDERS

1. [139]

   I propose the following orders:

   1. (1)

      Grant leave to appeal with respect to ground 3 of the application for leave to appeal against sentence.

   2. (2)

      Dismiss the appeal.

2. [140]

   HARRISON J: I agree with Walton J.