Abbey v R

Court of Criminal Appeal (NSW)|2017-05-10|Before: Leeming JA, Adamson J, Wilson J

Judgment

LEEMING JA: Abbey (which is not his real name) was convicted in the District Court following a trial lasting some 5 days before a jury of three charges (counts 1, 3(a) and 5) on an indictment which contained a total of twelve counts (including alternative counts), all of which involved acts of indecency or sexual intercourse with his step-daughter, who at the time was aged 11 or 12. On 22 January 2016, the trial judge imposed an aggregate sentence of 5 years and 6 months, with a non-parole period of 3 years and 3 months, backdated to 27 October 2015. Counts 1 and 5 were aggravated acts of indecency contrary to s 61O of the Crimes Act 1900 (NSW), subject to a maximum penalty of five years imprisonment. Count 3(a) was aggravated sexual intercourse without consent, contrary to s 61J, which carries a maximum penalty of 20 years imprisonment. All of the conduct was said to have taken place between 21 July 2001 and 29 April 2002, a period determined by reference to the complainant's mother being pregnant with her half-sister. Neither the applicant nor his step-daughter may be named, by reason of s 15A of the Children (Criminal Proceedings) Act 1987 (NSW) and s 578A of the Crimes Act 1900 (NSW).
The applicant seeks leave to appeal from both his convictions and his sentence. Grounds 1 and 2 are related to evidence of admission of guilt by the applicant by two witnesses, called in the Crown case, Ms Phillips and Mr McIntosh, both as to the admissibility of their evidence, and the failure to give an appropriate direction in relation to that evidence. Ground 3 is that the guilty verdicts were unreasonable or cannot be supported within the meaning of s 6(1) of the Criminal Appeal Act 1912 (NSW), having regard to the verdicts on the balance of the counts in the indictment. Ground 4 is that the sentence was manifestly excessive.

Grounds 1 and 2

These grounds were directed to the evidence of Ms Phillips and her ex‑husband Mr McIntosh. Ms Phillips and Mr McIntosh were friends of the applicant and went to court in 2006 to support him. On the fifth day of the trial, counsel for the accused objected to evidence proposed to be led by the Crown from them. Both said that they had been present outside the court in 2006, following the withdrawal of the earlier charges. Mr McIntosh had signed a statement in which he said that he heard the applicant say "some of these charges don't make sense to me but a couple of them I would have pleaded guilty to". Ms Phillip's evidence was that she heard the applicant say "I would have pleaded guilty to some of the charges but not all of them".
Although counsel mentioned ss 90 and 135 of the Evidence Act, the thrust of the argument was based on s 137 and, on appeal, the challenge was confined to s 137. That section provides: "137 Exclusion of prejudicial evidence in criminal proceedings In a criminal proceeding, the court must refuse to admit evidence adduced by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the defendant."
At trial, counsel for the accused accepted that the trial judge was bound by R v Burton [2013] NSWCCA 335; (2013) 237 A Crim R 238, that the evidence of Mr McIntosh and Ms Phillips had to be accepted at its highest, and did not dispute that the alleged admissions had probative value. His submissions were solely directed towards the prejudicial effect of the admissions. They focussed upon the variety of explanations which the jury might consider were supported by the admissions (including that he could not face a long trial, that he did not want his family torn apart, as well as speculation as to the particular offences to which he would have pleaded guilty). In a submission which was reiterated on appeal, it was said that: "it would set the hares running well and truly and provide prejudice which just couldn't be taken away by a proper direction."
The trial judge rejected the application and gave an ex tempore judgment. His Honour observed that one of the facts put in issue was whether the applicant was a "normal, caring stepfather who treated the complainant as he would a daughter, or whether he regularly sexually abused her in various ways". His Honour observed that the alleged representations were more than general statements against interest, but instead were consistent with the prosecution case and totally inconsistent with the case run by the applicant. His Honour observed that the balancing exercise required by s 137 involves weighing two incommensurables: the probative value and the danger of unfair prejudice. His Honour relied upon the analysis by Simpson J in R v Burton, including that the Court does not speculate about the possible alternative inferences that might be drawn from evidence when conducting the balancing exercise, applying what had there been said in relation to s 98 to s 137. His Honour said that it was clear that he was "obliged to look at the evidence at its highest and not speculate about the way the jury might approach the evidence".
His Honour acknowledged that there remained some potential for unfairness, by reason of the vagueness and ambiguity of the admissions. His Honour said that "the problem I foresee is that the jury could take what was a general admission and then apply it specifically to a count or all the counts in the indictment". Even so, because he regarded the evidence as particularly probative, going to a central issue of the prosecution case, and rebutting the defence case that the complainant was a malicious liar, his Honour formed the view that the danger that the jury would use the admission to prove a specific count was one that was best addressed by direction, to be given in similar terms to that given in relation to narrative evidence or unspecific corroborative complaint evidence. His Honour concluded that while there was the possibility of unfairness, he did not believe that the danger outweighed the significant probative value of the admissions.
The written submissions in support of this ground were brief, and the oral submissions briefer still. The applicant pointed to what Dawson J had said in Meissner v The Queen (1995) 184 CLR 132 at 157 as to the variety of reasons for a person charged with an offence to plead guilty, and emphasised that the evidence raised the prospect of speculation by the jury as to what particular count the appellant would have pleaded to, taking them away from their task of determining the central issue, whether the Crown had proven its case beyond reasonable doubt.
Neither the written nor oral submissions dealt with the evaluative judgment undertaken by the trial judge, which expressly balanced probative value and unfair prejudice. Indeed, neither at first instance nor on appeal were any submissions made as to the probative value to be given to the evidence of Ms Phillips and Mr McIntosh at all. That in turn gives rise to a threshold difficulty when seeking to challenge on appeal the balancing process required by s 137. But in any event, I would accept, no differently from the trial judge, that admitting the evidence carried with it a danger of unfair prejudice, because the evidence did not identify any of the charges, and conceivably could have related to the charges of violence as opposed to sexual intercourse and acts of indecency. However, that is not enough. It was not contended that there was any error in the trial judge taking the evidence at its highest. I see no error in the trial judge concluding that the probative value of the evidence of Ms Phillips and Mr McIntosh substantially outweighed the danger of unfair prejudice. Their evidence went directly to the defence case that the applicant had been a loving father and that the complainant was making her allegations up.
By ground 2, the applicant alleges that the trial judge failed to give an appropriate direction to the jury in respect of the use to which they could put the evidence of Ms Phillips and Mr McIntosh.
The trial judge dealt with this evidence in his summing up, recording that it was the applicant's case that the evidence of Ms Phillips and Mr McIntosh was simply a lie and nothing of the sort was said, and noting that even if the jury accepted that such a statement was made, "sometimes people plead guilty or accept responsibility for some offences for all sorts of reasons, sometimes even when they are not guilty".
His Honour also stated that care needed to be taken because the evidence was not that the applicant had said that he had committed every offence alleged. His Honour stated that the admission did not relate to any specific offence. His Honour instructed that: "[i]t cannot of itself prove an element of any count, but it can be used by you. If you accept it was made, then it will help you counter the defence case that these allegations are all malicious lies by [the complainant]. But it could not be used by you to show, just, he is a person of bad behaviour or has some general tendency to do things to [the complainant]."
His Honour reiterated that the jury must focus on the specific counts, and that the Crown had at all times the burden of proving beyond reasonable doubt the incidents charged occurred. The trial judge also referred to the relatively minor assault matters which had come before the court in 2006, which were dismissed at the same time as the indictment. His Honour observed: "But it remains possible, giving the accused the benefit of the doubt, that if said all [the applicant] was talking about was the hitting, that is the assaulting of [the complainant], nothing more, and he puts that forward as some possible alternative explanation for what was said, if you find it was said."
It should be added that the summing up by the trial judge was (commendably) concise, and the directions relating to the evidence of Ms Phillips and Mr McIntosh were a significant part of it. After completing those directions, his Honour gave the Crown and defence an opportunity to correct any matters of fact, and a further opportunity to reiterate or correct any matters of law, and on both occasions, both counsel advised that there were none. Accordingly, as Mr McMillan properly accepted during the hearing of the appeal, this is a case where r 4 of the Criminal Appeal Rules applies.
The applicant's written submissions contended that the trial judge should have gone further and indicated to the jury that they could have taken into account the possibility that the applicant was referring to the assault charges (paragraph 33). He submitted that the reference in the directions as to the way in which the evidence could be used was too broad and should have been more limited in its scope, that the trial judge had failed to give a warning about the limited use which could be given to the evidence, and said that the trial judge should have directed the jury that: "[T]hey had to be especially careful that they did not use this evidence as a fishing exercise to determine what particular offences would have pleaded guilty to."
I cannot accept any aspect of these submissions. There is, with respect, nothing in the point advanced in writing concerning the possibility that the applicant had been referring to the charges of physical assault. As has been noted above, this was - and in terms - the subject of a direction. The submission that the jury had to be "especially careful" about not using the evidence to speculate, or to undertake a "fishing exercise" as to what charges the applicant would have pleaded guilty to ignores the direction that the evidence of the admission "cannot of itself prove an element of any count".
As I read the direction to the jury, all of the matters of which complaint is now made were addressed, and addressed fairly. The fact that no complaint was made at the time, when ample opportunity was given to seek further directions, strengthens my conclusion as to the lack of merit in this ground. This Court collected authorities to the effect that "a failure to raise objections at the close of the judge's summing up is usually a reasonably reliable indicator of its fairness and adequacy" in Selby v R [2017] NSWCCA 40 at [46]. And the fact that the directions for which the applicant contended were never articulated is a further difficulty confronting the ground: Greenhalgh v R [2017] NSWCCA 94 at [21].
Neither of these grounds is made out. Both require leave. Neither warrants a grant of leave.

Ground 3

Ground 3 was the principal ground of appeal. It derives some qualified support from the statement by the trial judge at the commencement of his remarks on sentence: "At first blush, the verdicts do seem contradictory. I do not have to resolve the question why different verdicts were returned. However, on reflection, there is some reasonableness and logic to them. The general principles were set out in MacKenzie v The Queen (1996) 190 CLR 348 and MFA v The Queen (2002) 213 CLR 616. Although it is for others to determine, it may be that the counts where verdicts of guilty were returned were corroborated by other witnesses and partial admissions attributed to [the applicant], including admissions initially made to his wife TM, material she later in evidence retracted."
The most powerful submission advanced by the applicant was in relation to the guilty verdicts on counts 3(a) and 5, but not guilty in relation to counts 4(a) and (b). Those three counts were based on the complainant's evidence that one evening, while in the kitchen, the applicant performed cunnilingus on her (count 4), forced her to perform fellatio (count 3), after which he ejaculated over her lower body (count 5).
In her interview on 23 February 2005, the complainant described the incident as follows: "And he takes me up into the loungeroom and stuff, takes me towel off and then takes me into the kitchen table, puts me on the kitchen table and then he makes me, I don't know how youse put it, but he makes me play with his penis and kept tellin' me to go faster and faster and stuff and then he shoved it down my throat. And I kept trying to pull away and stuff, but he wouldn't let me, 'cause he kept, he got one of his hands and held my head from the back. And then he told me to lay on the table and then I did, 'cause he put me on the table and then all of a sudden he, he kept sayin', it's comin', comin', and all that, and then he comed all over my belly and stuff. And then he told me to wipe all the come away or something, so I did that. And then, and then he went down on me."
In her interview on 2 March 2005, the complainant forgot initially to mention any of the "kitchen" incidents. When reminded of what she had said the previous week, she recounted them. She said that the act of cunnilingus "was before he actually played with his penis".
The "kitchen" incidents were not mentioned in the interview on 3 March 2005.
The complainant was cross-examined at length on the discrepancies in her evidence in 2005 as to these incidents. It is not necessary to summarise that cross-examination. The applicant did not submit that any particular portion of it was squarely relevant to this ground of appeal.
The complainant's school friend also participated in a recorded interview in 2005, but her evidence was in general terms, save for one thing. She said, for example, that: "Q. So, has she spoken about anything else on any other occasion? A. ... [The applicant's] done all different things when her mother's gone out. Q. Has she gone into any detail? A. Not really, just that every time her, her mum goes out he's at it again, doing it every time."
The exception was that the school friend said that: "[H]er step-father had told her to go put a skirt on and then go up against the wall and shut up. So, that's what she told me at one point. Q. Did she go into any more details about that? A. No, not at that point. 'Cause then again she broke down crying at that point too."
The evidence of the two teachers and counsellor did not permit of a distinction between the conduct constituting counts 3(a), 4 and 5. Naturally, the evidence of Mr McIntosh and Ms Phillips as to what the applicant had said after the prosecution was withdrawn in 2006 was no different. Ms Phillips also gave evidence as to complaint that went somewhat further. She said that the complainant "mentioned out of the blue that [the applicant] had made her suck his penis". Even so, although that went directly to count 3(a), it did not explain the disparity in the verdicts for counts 4 and 5.
Hence the force of the submission as to how the jury could return guilty verdicts on counts 3(a) and 5, but not guilty on count 4. All turned on the evidence of the complainant, and it is difficult, on the face of the record in this Court, to identify how her evidence in relation to counts 3(a) and 5 would entitle a jury to be satisfied beyond reasonable doubt in relation to those counts, but not warrant the same conclusion in relation to the cunnilingus which she said also took place at the same time.
There was no dispute as to the applicable principle when there is a complaint that a verdict is unreasonable because of inconsistent verdicts returned by a jury. Examples of recent authorities were collected in Lepine v R [2017] NSWCCA 83 at [31]. The question is whether there is an acceptable explanation for the differentiation as a matter of logic and reasonableness.
An appeal bearing some resemblance to the present facts is McCann v R [2014] NSWCCA 79, where this Court concluded that there was no proper way to reconcile the jury's verdicts of guilty on counts 1 and 3 and not guilty on count 2, when count 2 was cunnilingus and count 3 digital penetration of a young girl, both of which were said to have occurred at the same time. The jury's verdict involved accepting and rejecting what the complainant had said in the same sentence and which involved conduct which she had said had been happening "at the same time": see at [20]. That was a case where the inconsistency was palpable: the trial judge had granted bail pending appeal, without the opposition of the Crown, although imposing a substantial custodial sentence, and had issued a certificate under s 5(1)(b) of the Criminal Appeal Act.
It is to be recalled that in MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53, Gleeson CJ, Hayne and Callinan JJ said at [34]: "In the case of sexual offences, of which there may be no objective evidence, some, or all, of the members of a jury may require some supporting evidence before they are satisfied beyond reasonable doubt on the word of a complainant. This may not be unreasonable. It does not necessarily involve a rejection of the complainant's evidence. A juror might consider it more probable than not that a complainant is telling the truth but require something additional before reaching a conclusion beyond reasonable doubt. The criminal trial procedure is designed to reinforce, in jurors, a sense of the seriousness of their task, and of the heavy burden of proof undertaken by the prosecution."
The most contemporaneous evidence of complaint available to the jury was the statement prepared by the complainant's mother dated 7 March 2005 - more than a decade before she gave evidence. In it, she referred to an occasion some two years previously, when she had first found out about complaints made by her daughter concerning the applicant. She identified the time of the confrontation by reason of the age of her youngest child, and: "It was warm, cause [the complainant] and I were in summer nighties. It could have been around the holidays. I say this because [the complainant] was home from school, and later that day when we went for a drive, the main street was busy, which makes me think it a week day."
Page two of her statement comprised paragraphs 7 to 12, which are as follows: "7. [The applicant] was on his last night of night shift at the mine. He gets home about quarter past 7 in the morning and usually comes straight to bed. I usually get up late, so it could have been half 10 or 11 when I got up. When I woke up, [the applicant] was not in bed. I walked out into the lounge room. I saw [the complainant] and [her brother] watching TV. I said to [the complainant] 'Where's dad? She said, 'He's in my bed.' I didn't really think anything of it at the time. I made myself a coffee and sat down in the lounge and had a smoke. [The complainant] kept looking at me. The way she was looking, I knew it was some sort of worried look on her face. Also, she has a nervous reaction where she either pinches her arms or puts her hands up to her face. That's when you do know something is wrong, so I asked her 'What's wrong? Tell me.' I don't remember the exact conversation, but it was very similar to this. She said, 'Dad was touching my breast and trying to get his hand down my pants. I pushed his hand away and said no and got out of bed. He got the shits and went to sleep.' 8. I asked her 'What else has he been doing.' She said, 'He blew on my stomach, he made me suck his dick and blew in my mouth and made me wash it out, and he fingered me.' She also said something like he wanted her to put on a dress with no knickers and sit with her legs spread in front of him, but she didn't want to do it and he didn't worry about it. I said, 'When did he do this?' She said, 'One time you were in bed, pregnant with [my daughter]. The other times you were out.' I hugged her and kissed her and told her not to worry. [The complainant] started crying. 9. It was about 2 or 3 hours later that [the applicant] got out of bed and came into the lounge room where everybody still was. I said to [the applicant] something like, 'What the fuck have you been doing with my daughter? Tell me the fuckin truth. [The complainant] has told me everything, I want to hear it from you.' He started crying and said, 'I'm so sorry. I didn't' mean to do it. Can we work something out.' I then told [the complainant] to say it again in front of [the applicant]. She said again what she had told me. [The applicant] didn't deny it, he just looked at me. I said, 'How come you didn't come to bed? Why were you in [the complainant's] bed?' He said, 'I don't know.' He was now kneeling on the floor, leaning against me. He was crying and trying to kiss me and cuddle me and he just kept saying he was sorry, saying he didn't want to go to gaol. I asked [the complainant] at that point what she wanted to do, did she want to go to the police. She said, 'I don't know.' I said that if we went to the Police it would end up with the Welfare and the Courts. [The complainant] said that she didn't want to do that at that time. I then told her that if he ever does it again, then she had to tell me straight away and we were out of here. 10. Later that day I went for a drive with [the complainant]. At one point we were going past the Police Station. I said "Are you sure you don't want me to pop in?' She said, 'No.' When we got home [the applicant] was out in the shed. He would come in every now and again, sobbing, just saying he was sorry. At one point I told him that if he needed sex he should have gone to some whore on the street. He said, 'I couldn't do that to you.' 11. Because [the applicant] had been found out, and it was out in the open, I believed that I could protect [the complainant] from it happening again. I have been careful to make sure that it couldn't happen again. 12. A couple of weeks ago when it all came up again, [the complainant] moved out of the house to live with my sister. I told [the applicant] to move out of the house. I've spoken to him lots of times since he's moved out. It's usually him ringing me to tell me all about what he's going through. He's denied doing anything recently, but he still hasn't denied what happened two years ago."
Pages 1 and 3 of the statement were signed by the complainant's mother, but page 2 was not. All 3 pages were witnessed by the same signature, a police officer who gave evidence. The absence of a signature on p 2 was agitated in some detail during the trial, and in the applicant's written submissions, although not orally. However, as will be seen below, it is clear that it was open to the jury to accept that the whole of the statement accurately reflected the mother's recollection in 2005.
The critical paragraph in the statement is paragraph 8. The third sentence of that paragraph is corroborative of the conduct giving rise to count 1 (the dress incident). The second sentence of the paragraph, the mother recalling her daughter saying "he blew on my stomach", is corroborative of count 5. The remainder of that sentence resembles the conduct in count 3, although concededly the words "blew in my mouth and made me wash it out" reflect different conduct, as do the concluding words "he fingered me". The Crown, however, submitted that what was conspicuous by its absence from that paragraph was a complaint about the conduct giving rise to count 4. Hence, to the extent that the jury was only able to be satisfied beyond reasonable doubt where there was corroboration, the limited corroboration in paragraph 8 of the most contemporaneous record of the complainant's complaints supported the convictions on counts 1, 3(a) and 5 and the acquittal on count 4.
The complainant's mother was called on the Crown case. She was asked to read aloud her statement in 2005, and when she reached paragraph 8, she said that she was not prepared to read it. The Crown was given leave pursuant to s 38 of the Evidence Act 1995 (NSW) to read it to her, following which there was this exchange: "Q. That's what you told the police back in 2005, isn't it? A. That's probably what I did say but I can't remember it. Q. I suggest to you that you can remember it? A. You can't make me remember something I don't remember 10 years ago. Q. I suggest to you that you're trying to protect [the applicant] by not answering my questions to the best of your ability, is that right? A. No."
Shortly thereafter, having agreed that she had a good life with the applicant which she didn't want wrecked, there was this exchange: "Q. You're angry with [the complainant] for coming forward about this, aren't you? A. No, I hate [the complainant] for her bullshit lies. Q. You don't see [the complainant] anymore, do you? A. No, I don't want to either. Q. Why don't you want to see her? A. Why don't I see her? Q. Why don't you want to see her? A. Because she's a lying bitch. Q. You're pretty angry about that, aren't you? A. Yep."
Shortly thereafter, the witness denied having any conversation about the charges with her daughter. She denied that she had any conversations with her daughter in 2005 and 2006 asking her to drop the charges.
The mother's 2005 statement was tendered, with copies provided to the jury, and the Crown invited them to prefer what was said in it to her evidence ten years later. It was amply open to the jury, who saw the complainant's mother give that evidence, to regard the statement she had made in 2005 (which originally she accepted was "probably what I did say" before subsequently disavowing it) as probative evidence of counts 1, 3(a) and 5.
As earlier noted, the Crown called Ms Phillips, who gave evidence that the complainant: "[o]n [one] occasion mentioned out of the blue that [the applicant] had made her suck his penis. I can't remember how old she was when she told me that. I was a bit shocked, and I actually asked her [to] go tell somebody at school about it." She said that those were her exact words.
The evidence summarised above sustains an acceptable basis for the jury's differentiation between counts 3(a), 4 and 5. The complainant gave evidence that was capable of making out each of those three charges. However, it was open to the jury, entirely in accordance with their oaths or affirmations, to form the view that they would not be persuaded to the criminal standard of the serious criminal charges on which the applicant stood trial without corroborative evidence. The strongest independent corroborative evidence was the 2005 statement by the complainant's mother, which identified each of counts 1, 3(a) and 5. Importantly for present purposes, that statement does not corroborate the act of cunnilingus giving rise to counts 4(a) and (b).
Further, the school counsellor gave evidence that: "[the complainant] told me that she was really upset. She told me that about 18 months or two years ago her stepfather had sexually interfered with her but I can't remember her exact words, I think she mentioned something like he had had sex with her in bed. [The complainant] wasn't explicit in details about the sexual abuse. She said that it had been for a period of something like two years and that it had stopped because she had told her mother about it."
The counsellor was not cross-examined. Although the statement does not differentiate between the various forms of sexual abuse with which the applicant was charged, it does lend support to the thrust of the complainant's mother's statement, which was that there had been a confrontation within the family some two years earlier.
As previously noted, the disparity in verdicts between counts 3(a), 4(a) and 4(b) and 5 is the strongest aspect of this ground. The fact that the jury also found the applicant guilty of count 1 is readily explained by reason of the corroborative evidence in the complainant's mother's statement, and the evidence of her friend (which is reproduced above). In contrast, there was no equivalent correlation of the events giving rise to counts 2, 6 and 7. The generalised references to her step-father "fingering" the complainant are much less specific than the evidence corroborating grounds 1, 3(a) and 5. There is an acceptable explanation for the differentiation as a matter of logic and reasonableness.
In short, it was open to the jury, who saw the recordings of the complainant's evidence made in 2005, and saw her extensive cross-examination, to be satisfied beyond reasonable doubt of matters which were corroborated by her mother's 2005 statement, the evidence of Ms Phillips (in relation to count 3(a)) and the evidence of her friend (in relation to count 1). Although there should be a grant of leave, this ground of appeal should be dismissed.

Ground 4

Finally, the applicant seeks leave to appeal from the sentence imposed, on the single ground that it was manifestly excessive.
The trial judge imposed an aggregate sentence for the conviction on counts 1, 3(a) and 5 of five years and six months, with a non-parole period of three years and three months. The indicative sentences provided pursuant to s 53A(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW) were one year's imprisonment in relation to count 1, two years' imprisonment in relation to count 5 and five years' imprisonment in relation to count 3(a).
The applicant disavowed any complaint in relation to the head sentence, which he acknowledged was "well within range". This ground was confined to the non-parole period which, it will be seen, comprises some 59% of the head sentence. In the course of his Honour's reasons when pronouncing sentence, on 22 January 2016, the trial judge made a variety of favourable findings, including that the references were "impressive", he had been assessed as being in a "low risk category" for reoffending, he was coping reasonably well in jail, was well liked, had no disciplinary matters, and had obtained a position of authority. His Honour made a finding of special circumstances, entitling him to reduce the non-parole period in accordance with s 44(2) of the Crimes (Sentencing Procedure) Act. His Honour said that he was "reasonably confident that there will be no offending, given all the material before me". His Honour said that there was a strong basis for a finding of special circumstances, but cautioned himself that "the minimum period for which the offender should be imprisoned must also properly reflect the gravity of his offences and all the manifold purposes of sentencing: R v Simpson (2001) 53 NSWLR 704; [2001] NSWCCA 534 at [59]".
By his written submissions, the applicant contended that the trial judge had available material "from which he could form a positive view as to the rehabilitative prospects of the applicant". It was submitted that the trial judge "failed to take advantage" of that material.
A ground based on manifest excess does not require the identification of particular error (contrary to what was put in the written submissions): see Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [25]. In any event, the trial judge expressly directed his attention to the positive material and did in fact form a highly positive view of the applicant's rehabilitative prospects. This aspect of the submissions must be rejected.
Orally, counsel for the applicant approached the matter differently. He observed that the applicant was "not terribly literate", was in the "low risk category", with a consequent difficulty in obtaining access to sexual offenders programs. He said "we say that s 21A(3)(h) of the sentencing legislation [the offender has good prospects of rehabilitation] should have been given more prominence in dealing with this particular offender". It was said that a non-parole period was "far too high".
The trial judge addressed the prospects of rehabilitation in terms, and favourably to the applicant. There was a finding of special circumstances in his favour. No basis has been made out to challenge the evaluative judgment of the trial judge, who had the considerable advantage of having seen the entire trial, and who expressly weighed against the favourable findings as to rehabilitation, the need for denunciation and general deterrence.

Orders

For those reasons, there should be a grant of leave confined to ground 3, and otherwise leave to appeal should be refused. The appeal must be dismissed.
Finally, it may be noted that by the time the appeal was heard, the applicant had served around half of the non-parole period of his sentence. A notice of appeal was filed on 28 October 2016, almost a year after his conviction, and slightly more than 9 months after the sentence was imposed. A hearing date in March 2017 was allocated on 9 November 2016, but that date had to be vacated due to the illness of counsel. That is not said by way of criticism (the Court was told that there were delays in obtaining transcripts), but merely so as to explain the time that has elapsed.
ADAMSON J: I agree with Leeming JA.
WILSON J: I agree with Leeming JA. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 29 May 2017

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