Ashley v The Queen [2016] VSCA 246

CRIMINAL LAW - Sentence - Applicant sentenced to nine years' imprisonment with non-parole period of six years - Whether sentence manifestly excessive - Sentence within range - Leave to appeal refused.

1 On 17 November 2015, the applicant was convicted in the County Court at Melbourne on nine charges of sexual penetration of a child under the age of 16. He was acquitted of two further charges of the same offence.

2 An initial trial (conducted from 26 to 29 October 2015) was aborted. The jury in that trial had to be discharged because the judge fell ill. A second trial commenced on 2 November 2015, and the convictions followed.

1. Following a plea on 27 November 2015, the applicant was sentenced on 3 December 2015 as follows:

Sexual penetration of a child under 16 [Crimes Act 1958 s 45(1)]

15 years [Crimes Act 1958 s 45(1)(b)]

Sentenced as serious sexual offender in relation to Charges 3, 4, 6, 7, 8, 9 and 11.

Life reporting under Sex Offender Registration Act 2004.

4 The applicant now seeks leave to appeal against conviction on the following grounds.

1. The verdicts of guilty are inconsistent with the two verdicts of not guilty.
2. The learned trial judge erred in admitting into evidence allegations of uncharged criminal acts.
3. The learned trial judge refused an application for a direction pursuant to s 43 of the Jury Directions Act 2015 thus occasioning a substantial miscarriage of justice.
4. The verdicts are unreasonable and/or cannot be supported by the evidence.

5 The applicant also seeks leave to appeal against sentence and relies upon the following ground.

1. The sentence imposed on the charges of sexual penetration of a child under 16 and the orders for cumulation:
   1. Were manifestly excessive; and
   2. Outside the range of sentences reasonably open in the circumstances of the offence and the offender; and
   3. Resulted in a total effective sentence and non-parole period that were manifestly excessive.

6 The applicant was born on 1 February 1948. At the time of the alleged offending he was between 53 and 54 years of age.

7 The victim (hereafter the 'complainant') was the daughter of a woman with whom the applicant had entered into a relationship. She was born on 1 December 1987. At the time of the alleged offending she was between 13 and 14 years of age.

8 The applicant's relationship with the complainant's mother commenced in about January 2000. At that time he was still married and living with his wife. Soon afterwards, he began staying overnight at the complainant's mother's house, in Moonee Ponds.

9 In the period leading up to 4 October 2001, the complainant shared a bedroom with her elder sister. Thereafter, she moved into a separate bedroom in the house.

10 The complainant's mother worked both day and night shifts. The applicant would often be present at the family home when she was at work.

11 Soon after the applicant and the complainant's mother began their relationship, the complainant developed a dislike for him. However, over time, as he provided support to the family, assisting the mother with housework and other chores, the complainant began to trust him. Additionally, her mother had previously been involved in an abusive relationship, and the complainant felt that the applicant was a positive influence on her.

12 In the course of the applicant's trial, the complainant gave evidence that the applicant would periodically adopt 'spiritual personas'. These were different characters or entities which would take control of his body. Throughout this period, the complainant kept a diary, in which she made reference to these personas. According to the diary, the applicant began morphing into and out of these personas in or about September 2001. When a particular persona took over, his demeanour and behaviour would change. He spoke in a different manner. He told the complainant, as well as her mother and sister, that when these personas were present he had no control over his body.

13 The complainant said that the applicant initially displayed two quite separate personas, called 'Trinity' and 'Tahai', each of which would appear on a regular basis. They were not 'from the human world.' Other, less frequently recurring, personas included 'Emerald', who was a female fairy and her daughter, 'Snowdrop', as well as Amelia (who the complainant described as the 'head honcho' of the various spiritual personas which the applicant adopted). The complainant said that she had not questioned the existence of these personas because her mother appeared to have accepted them. She said that she did not want to 'rock the boat'.

14 In early 2001, the complainant stayed home from school because she was ill. Her mother was at work, and her sister was at school. She was in bed when the applicant, appearing as Tahai, entered her room. She said that he was wearing beige pants and a shirt. He asked her how she was feeling and then lay down beside her. He was over the doona cover and she was under it.

15 The applicant began discussing 'chakras' with her. While explaining what a chakra was, he started massaging the middle of her forehead. He then lay underneath the doona facing her. He put his hand on her stomach and asked 'Where does your tummy hurt?' She answered 'Everywhere'.

16 The applicant then began to rub her stomach. He put his hand down her pyjama pants. He told her to spread her legs apart, and to place the soles of her feet together. He next rubbed her vaginal area in a circular motion over her underwear. He then put his hand under her underwear and repeated the same circular motion over her vagina and clitoris. Finally, he penetrated her vagina with his finger.

17 The complainant said that this entire incident lasted about an hour and a half. During this time, the applicant also rubbed her breasts and nipples. She eventually managed to break free, and left the room. When he emerged, about half an hour later, he was no longer Tahai.

18 Later in 2001, a second incident of sexual abuse took place. The complainant's mother was at work and the applicant was caring for her and her sister.

19 The complainant said that the applicant came into her bedroom and got into her bed. She said that he touched her in much the same way as she had described with regard to the offending specified in charge 1. He told her to spread her legs and place the soles of her feet together. He rubbed her breasts and put his hand under her underwear, penetrating her vagina with his finger. According to the complainant, this all took place while her sister was in the bedroom, in her own bed, probably asleep.

20 When asked whether the applicant had exhibited any characteristics or traits of any other persona during the course of this offending, the complainant said that she could not remember.

21 On yet another occasion in 2001, the applicant was caring for the complainant and her sister while their mother was at work. He came into the complainant's bedroom, and lay down in her bed. He again touched her in the manner previously described. He told her to spread her legs and place the soles of her feet together. He then rubbed her breasts and nipples, and put his hand under her underwear, penetrating her vagina with his finger. According to the complainant, her sister was in the bedroom at the time, and was probably asleep. The complainant said nothing in her evidence regarding the applicant having adopted any persona at that time.

22 Later in 2001, the applicant was again caring for the complainant and her sister while their mother was at work. On this occasion, she was sitting on a couch in the lounge room, watching television. He propped her up so that he was sitting behind her. He then touched her stomach and rubbed her breasts and nipples. He pulled down her pants and underwear and began stroking her vagina and clitoris. He then penetrated her vagina with his finger.

23 The complainant said that during the course of this incident, the applicant was opening and closing his mouth in a manner that suggested to her that he had adopted the persona of either Emerald or Snowdrop.

24 The complainant gave a detailed account of how, on this occasion, the applicant removed the right leg of her pants as a prelude to digitally penetrating her. She recalled specifically having felt frightened, and particularly exposed, because she was apprehensive that her sister might walk in at any time. She contrasted her state of mind on this occasion with the earlier episodes where the applicant had abused her in her bedroom, while her sister was in bed. On those occasions, the lights were off, and the complainant was under the doona. She had assumed throughout that her sister had been asleep, and would not have noticed what was happening.

25 On a date unspecified, but after 4 October 2001 (that being the date upon which the complainant was given her own room in the Moonee Ponds house), the applicant came into her bedroom. Her mother was at work, and she had gone to bed and switched off the lights. She said that the applicant got into bed with her. He then spread her legs and placed the soles of her feet together. He touched her stomach, breasts and nipples. He then put his hand under her underwear and touched her clitoris and vagina. He next digitally penetrated her vagina a number of times.

26 The complainant said that, on this occasion, unlike previously, the applicant said nothing to her. When asked whether there was anything concerning his behaviour that night that indicated that some other persona or spiritual friend might be present, she replied that she could not remember. She said that she had no recollection of what clothing he had worn. Nor could she remember how the incident had ended.

27 The complainant said that, later in 2001, the applicant and her mother had an argument. Her mother then went to work. The applicant entered the complainant's bedroom and said, 'Your mum wants me to leave. This is probably going to be the last time you'll see me.' The complainant was upset and began to cry. The applicant purported to comfort her. He then began to rub her stomach, breasts and nipples. He spread her legs and positioned her feet so that her soles were touching. Finally, as previously, he digitally penetrated her.

28 The complainant said that, throughout this incident, the applicant had adopted the persona of either Tahai or Trinity. She gathered that from the sound of his voice, which was deeper than normal, and also by his speech, which was slower than usual.

29 On a weekend morning late in 2001 or early 2002 the complainant was in the applicant's care, as both her mother and sister were out. She was lying on her mother's bed, in the main bedroom. She claimed that the applicant climbed on top of her, undressed her, spread her legs apart and touched her breasts. He commenced to kiss and lick her vagina. He then inserted his tongue into her vagina, that being the act of sexual penetration that gave rise to charge 7.

30 The applicant then moved the complainant's hips backwards and forwards. He began to rub his erect penis against her vagina. He said that he 'wanted her' and 'needed her'. He then placed his erect penis, which was still covered by his underpants, into her vagina. At the time, the applicant was making noises and groaning. He then lay on his back and made the complainant straddle him. He rubbed her vagina on his penis before ejaculating. This act of penile penetration gave rise to charge 8.

31 The applicant immediately thereafter penetrated her vagina digitally. That act of penetration gave rise to charge 9.

32 The complainant said that throughout these three separate acts of penetration, the applicant displayed the characteristics of either Emerald or Snowdrop. She could tell this by his voice, which was higher in tone and pitch than usual, and his demeanour, which was lighter and more playful. She was able to recall that, on this occasion, he wore beige pants with a belt, but no shirt.

33 The complainant said that some time in 2002 there had been another incident involving sexual abuse. She was lying in her mother's bed, with her mother next to her. She was reading a book and her mother was asleep. The applicant entered the room and lay down on the bed, between the complainant and her mother. He then turned to face her. He made her spread her legs in the same manner as previously described, with the soles of her feet touching. He then put his hand under her underwear and began to stroke her vagina and clitoris. Finally, he digitally penetrated her. The entire incident lasted about 25 minutes.

34 The complainant said that, on this occasion, the applicant was wearing pants and a shirt. She said that there was little room for him to fit between her mother and herself. Accordingly, she had had to 'wiggle' over to her side in order to give him space to lie down. She said that she continued reading for a time before he began to molest her.

35 The complainant said that she could specifically remember thinking to herself 'You have got to be kidding me. How dare you do this, not only to me, but you're in my mother's bed with me, with my mum right next to you.' She said she was 'so angry'. The incident ended when she pulled up her underwear and pants, and walked out of the room. She said that, by this stage, she had developed a strong dislike of the applicant.

36 In approximately August 2002, the complainant and her family moved to a new house in East Keilor. She had her own bedroom in that house. On a date that she could not specify, but that may have been in 2002, the applicant was looking after her while her mother was at work. He entered her bedroom and got underneath the doona with her. He rubbed her stomach, breasts and nipples over her clothing. He then continued to do so under her clothing. He next used his hands to spread her legs in a similar fashion to that previously described, with the soles of her feet touching. He next stroked her clitoris with his finger and digitally penetrated her vagina. The entire incident lasted for about 25 minutes.

The complainant's reporting of the applicant's behaviour

37 In late 2002 or early 2003, the complainant was in her mother's car together with her sister. Her mother asked her, seemingly out of the blue, whether the applicant had done anything inappropriate to her. She replied that nothing of that kind had occurred.

38 About three weeks later, the complainant's mother asked her why she disliked the applicant. She then told her mother, for the first time and in general terms, that the applicant had sexually abused her, and pointed to the lower part of her body. It was after that that her mother put an end to the relationship with the applicant.

39 A close friend of the complainant, SB, gave evidence that several months after the applicant and the complainant's mother had split up, the complainant told her that the applicant used to have the complainant touch him, and that he used to touch her vagina.

40 SB also gave evidence of a conversation that she had with the complainant in about 2004. At that time they were both in year 11. They attended a friend's birthday. The complainant broke down, and repeated what she had earlier told SB, but this time in more detail. According to SB, the complainant had told her that the applicant had forced her to give him 'blowjobs'.

41 SB's account of that conversation stood in stark contrast with that of the complainant. She denied ever having said that the applicant had made her give him 'blowjobs', and said that nothing of that kind had occurred. She agreed that if she had mentioned 'blow jobs' to SB, that would have been an utter lie.

42 It should be noted that the complainant did not report the applicant's alleged sexual abuse to the police until 2013.

43 The complainant had attended Strathmore Primary School. In her diary, she had recorded an account of an evening where she and a number of friends, including SB, had gone to the grounds of the school in order to have a sleepover. She then wrote about a series of narrow escapes from potential male assailants, with the group (including SB) having finally reached the safety of the grounds of a fast food outlet. There they sheltered until the outlet opened in the morning. The complainant, in cross-examination, when challenged as to whether any such incident had taken place, adhered to her statement, and insisted that it had. Indeed, she went into a great deal of detail as to precisely what was said to have occurred that night.

44 SB's evidence was that she had never taken part in a sleepover at the school. She entirely denied the complainant's account of an incident that involved potential male assailants, or anything of the kind.

Conviction Appeal Ground 1 - inconsistent verdicts

45 The applicant submitted that the guilty verdicts on charges 1, 2, 3, 4, 6, 7, 8, 9 and 11 were inconsistent with the not guilty verdicts on charges 5 and 10. The point being made was that, having regard to such inconsistency, none of the convictions could stand because the verdicts were unreasonable. In other words, the convictions were unsafe or unsatisfactory.

46 It was submitted that there could be no logical, or rational, explanation for the jury's having accepted the complainant's evidence in respect of the nine charges upon which they convicted, but having rejected her evidence in respect of the two charges upon which they acquitted.

47 More specifically, it was submitted that the complainant's evidence in support of charge 5 was virtually indistinguishable in character from her evidence in respect of, for example, charges 2, 3 and 4. That being so, the convictions on all other charges were necessarily unsafe and unsatisfactory, and should be quashed.

48 Alternatively, it was submitted that the same could be said of the complainant's evidence in support of charge 10. That evidence had been particularly detailed, and concerned an incident that would have been so entrenched in the mind of the complainant, had it occurred, that the only reasonable conclusion was that the jury had rejected her evidence regarding that matter as untruthful.

49 The Crown responded to this ground by submitting that there was a logical, and perfectly rational, explanation for the acquittals on charges 5 and 10 and the convictions on the remaining charges.

50 As regards charge 5, it was submitted that the complainant's evidence contradicted the prosecution opening, in the trial, in certain key respects. The prosecutor had opened the case on the basis that during the conduct giving rise to this charge: 'The Accused did not say anything to [her], but by [his] slow paced and heavy breathing [led her] to believe at the time it was 'spiritual friend' persona 'Tahai' or 'Trinity'.'

51 However, in cross-examination, the complainant, when pressed for details regarding the events concerning charge 5, said that she could not remember whether there was anything about the applicant which led her to believe that a 'spiritual persona' had been present at that time. She expressly agreed that the applicant might have been 'John', or he could have been Trinity, Tahai, Emerald or Snowdrop at the time. She thought he was probably not Amelia. She then added that there were times that she did not have strong memories of 'John' having abused her.

52 As regards charge 10, the Crown submitted that it was perfectly obvious why the jury could, legitimately, have acquitted the applicant, while convicting him on nine of the remaining ten charges. The complainant's account of this incident, which was said to have occurred not merely while her mother was in the same room, but in the very same bed, and was said to have lasted for some 25 minutes, was so inherently implausible that it was not at all surprising that the jury gave the applicant the benefit of the doubt. The acquittal on charge 10 did not entail a finding that the complainant had been untruthful. It merely meant that the jury were not satisfied beyond reasonable doubt of the applicant's guilt.

53 The principles that govern inconsistent verdicts as a ground of appeal are well established.

54 In MFA v The Queen,[1] the issue raised on the appeal was whether the New South Wales Court of Criminal Appeal had erred in the manner in which it dealt with a contention that, in a case of multiple counts, verdicts of guilty on some were unreasonable having regard to verdicts of acquittal on others.

55 In a joint judgment, Gleeson CJ, Hayne and Callinan JJ said:

Where it is argued that the verdict of a jury is unreasonable, or cannot be supported, having regard to the evidence, the test to be applied is that stated by Mason CJ, Deane, Dawson and Toohey JJ in their joint judgment in M v The Queen. That test was accepted and applied by this Court in Jones v The Queen. In M, it was pointed out that it was once common for expressions such as 'unsafe or unsatisfactory', or 'unjust or unsafe', or 'dangerous or unsafe' to be used in place of the language of s 6(1) of the Criminal Appeal Act, and corresponding statutes in other jurisdictions, and that such expressions might cover different parts of the statutory provision, referring, for example, either to a verdict that is unreasonable, or cannot be supported, having regard to the evidence, or to a miscarriage of justice because an accused has not had a fair trial according to law.[2]

In MacKenzie v The Queen, Gaudron, Gummow and Kirby JJ stated a number of general propositions concerning the significance that may properly be attached to what is sometimes referred to as factual inconsistency between verdicts. In that respect, it is to be noted that, where an accused is charged with multiple offences, differences between the verdicts may not, in truth, involve inconsistencies even of a factual kind. In the present case, if there had been a verdict of guilty on count 2 and not guilty on count 3, where the charges were supported by substantially the same evidence, then there would have been factual, even though not technical or legal, inconsistency. However, the evidence in support of counts 7 and 8 was materially different from the evidence in relation to counts 1 to 6 and count 9. The complainant was, to a significant extent, supported by MA.

Since the ultimate question concerns the reasonableness of the jury's decision, the significance of verdicts of not guilty on some counts in an indictment must necessarily be considered in the light of the facts and circumstances of the particular case. Furthermore, it must be considered in the context of the system within which juries function, and of their role in that system. A number of features of that context were emphasised in MacKenzie. They include the following. First, as in the present case, where an indictment contains multiple counts, the jury will ordinarily be directed to give separate consideration to each count. This will often be accompanied by a specific instruction that the evidence of a witness may be accepted in whole or in part. Secondly, emphasis will invariably be placed upon the onus of proof borne by the prosecution. In jurisdictions where unanimity is required, such as New South Wales, every juror must be satisfied beyond reasonable doubt of every element in the offence. 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. A verdict of not guilty does not necessarily imply that a complainant has been disbelieved, or a want of confidence in the complainant. It may simply reflect a cautious approach to the discharge of a heavy responsibility. In addition to want of supporting evidence, other factors that might cause a jury to draw back from reaching a conclusion beyond reasonable doubt in relation to some aspects of a complainant's evidence might be that the complainant has shown some uncertainty as to matters of detail, or has been shown to have a faulty recollection of some matters, or has been shown otherwise to be more reliable about some parts of his or her evidence than about others. Thirdly, there is the consideration stated by King CJ in R v Kirkman, and referred to in later cases: it may appear to a jury, that, although a number of offences have been alleged, justice is met by convicting an accused of some only. And there may be an interaction between this consideration and the two matters earlier discussed.

It appears from the review of decisions of trial judges and intermediate appellate courts undertaken in Markuleski that some judges have taken Jones as authority for the proposition that where multiple offences are alleged involving the one complainant, then verdicts of not guilty on some counts necessarily reflect a view that the complainant was untruthful or unreliable, and that an appellate court should consider the reasonableness of guilty verdicts on the basis that the complainant is a person of damaged credibility. That view is erroneous. It overlooks the attention to factual detail in the reasoning of Jones. It also overlooks the principles stated in MacKenzie, which were not qualified in Jones, and the considerations mentioned in the preceding paragraph in these reasons. Jones is not to be understood as establishing a set of legal propositions, separate or different from the test formulated in M, which must be applied in deciding whether a conviction on one or more counts of sexual offences, when the accused was acquitted on other counts, is unreasonable, or cannot be supported, having regard to the evidence.[3]

57 In their joint judgment, McHugh, Gummow and Kirby JJ, while agreeing that the appeal should be dismissed, stated the relevant principles as follows:

...the appellant invoked observations in the reasons of the majority of this Court in Jones. That was a case where an accused had been charged with three counts involving sexual offences alleged by a single complainant. The jury found the accused not guilty on the second count but guilty on the first and third counts. By majority, this Court set aside the convictions in respect of the first and third counts on the ground that those verdicts were unreasonable. It entered an acquittal. Kirby J dissented on the basis that the differences between the jury's verdicts were explicable upon rational grounds founded in the differentiation of the evidence relevant to the respective counts. He cited the reasons of this Court in its then recent decision in MacKenzie v The Queen. In that case, this Court had examined the authorities on suggested inconsistency between verdicts.

The principles in MacKenzie apply to the present case. This is not an instance of 'legal or technical inconsistency', whereby the jury have returned two or more verdicts which, in law, cannot stand together. Nor is it a case where 'logic and reasonableness' necessarily dictated a common approach to the several verdicts concerned. In judging suggested inconsistency, this Court said in MacKenzie that 'if there is a proper way by which the appellate court may reconcile the verdicts, allowing it to conclude that the jury performed their functions as required, that conclusion will generally be accepted'. The Court cited with approval the remarks of King CJ in R v Kirkman to the effect that juries may not always act 'in accordance with strictly logical considerations' or even 'in accordance with the strict principles of the law which are explained to them'. Juries sometimes give effect to 'their innate sense of fairness and justice' as well as to their sense of proportion and compassion.

Nevertheless, cases do arise where different verdicts returned by a jury represent 'an affront to logic and common sense' and suggest a compromise in the performance of the jury's duty. Such a conclusion 'depends upon the facts of the case'. There can be no 'hard and fast rules' except that the obligation to demonstrate inconsistency in jury verdicts rests upon the person making the submission.[4]

58 The decision in MFA has been applied by this Court on a number of occasions.[5]

It is, of course, trite law that two verdicts are not inconsistent, in a relevant sense, if there is a reasonable and logical means by which the jury may have come to their conclusions. If, however, there is no rational explanation for the apparent inconsistency, the verdict of guilty will be set aside as unsafe or unsatisfactory.[6]

The authorities make it clear that appellate courts should approach a claim of inconsistent verdicts with caution. If there is an apparently rational explanation for a jury's having differentiated between various charges, that explanation should be preferred to one which suggests that the jury may have foresworn their oaths, and impermissibly compromised. [7]

61 More recently, in Janes v The Queen, the relevant principles were stated as follows:

Since the supposed inconsistency arises in the jury's verdicts on different charges in the indictment, the applicable test is one of logic and reasonableness. Thus, if there is a proper way by which the two verdicts may be reconciled, and there is some evidence to support the verdict of guilty claimed to be inconsistent with the acquittal, it is not this court's role to substitute its own opinion of the facts for one which was open to the jury. In cases such as the present, it is necessary to always bear in mind that the jury may have followed the direction to consider each charge separately, or may have taken a 'merciful' view of the facts.[8]

62 In Avery (A pseudonym) v The Queen,[9] it was said that if there is a rational explanation for the different verdicts arrived at by a jury, that explanation should be preferred to one which suggests that the jury have forsworn their oaths and impermissibly compromised.[10]

63 As the High Court has stated in both MacKenzie v The Queen[11] and MFA, intermediate appellate courts should approach a claim of inconsistent verdicts with caution.

64 In the present case, it is unnecessary to consider whether the jury, by acquitting on charges 5 and 10, may simply have taken a 'merciful view' of the facts. As the Crown correctly submitted, there is a rational explanation for the verdicts that were arrived at.

65 With regard to charge 5, there are several plausible explanations as to how the jury may have concluded that there should be a verdict of acquittal, while at the same time convicting of other, similar, charges.

66 First, as the Crown correctly submitted, the case as opened to the jury attributed to the complainant a very specific, and detailed, description of the applicant having adopted the Tahai or Trinity personas when he committed the offence specified in charge 5. Yet, when she was asked whether there was anything about what he was doing which indicated that some other persona or spiritual friend might be present at that time, she said that she could not remember. Contrary to the applicant's submission, we consider that it is entirely possible that one or more jurors picked up that discrepancy, and regarded it as casting some doubt upon the reliability of the complainant's account as regards this particular charge.

67 Secondly, a close reading of the evidence in support of charge 5 suggests that the complainant's recollection of the details of the applicant's alleged offending was somewhat vague. For example, when asked whether the applicant was dressed or undressed at the time, all that she could say was that he had clothes on. That answer stood in stark contrast with the level of detail that she could muster in relation to precisely what he was wearing when it came to recounting what had occurred in relation to a number of the other charges.

68 Thirdly, when asked 'how the incident finished', all that the complainant could say was that she could not remember. Once again, that response stood in stark contrast, in terms of detail, with the complainant's evidence regarding a number of the other charges.

69 In summary, the complainant's evidence regarding charge 5 was less detailed, and indicated some problems with her memory, in a way that was not reflected in relation to at least a number of the other charges.

70 The verdict of acquittal on charge 10 is easily reconciled with the nine charges resulting in conviction. The complainant's account of having been sexually abused for a period of some 25 minutes or so, lying next to her mother, in her mother's bed, with her mother asleep throughout, was so inherently implausible that a jury might be expected to pause before accepting it.

71 Of course, the acquittal on charge 10 does not, as the applicant claimed, demonstrate that the jury found the complainant to be a liar. It may simply indicate that, in a case where a particular allegation made by an otherwise credible witness was inherently improbable, the jury required more in order to be satisfied beyond reasonable doubt of the guilt of the accused.

72 Viewed in this way, there is nothing illogical, or irrational, about the jury's verdicts in this case. Ground 1, based as it is solely upon a supposed inconsistency between verdicts, must be rejected.

73 The prosecution led evidence of 'uncharged acts' (a term that should be avoided if possible) in order to provide 'context' to the charges on the indictment. The evidence of a series of unspecified acts of sexual misconduct that were not directly associated with the nine incidents giving rise to the charges laid indicated that the applicant offended on a regular basis, entirely separate from the charged incidents. The trial judge ruled that such evidence could be led as context evidence.

74 In the trial, defence counsel argued that there were insufficient particulars given in relation to when and where the uncharged acts took place. It was submitted that this lack of adequate specificity caused unfair prejudice to the accused.

75 Essentially, the evidence of 'uncharged acts' that was led arose out of three incidents.

76 The first occurred one night when the complainant's mother was at work, and the family were still living at the Moonee Ponds address. The complainant gave evidence that, broadly speaking, accorded with the allegations made in support of charges 2, 3 and 5.

77 The complainant said that, throughout this incident, the applicant did not say anything. She said that she could not remember how long this offending lasted on the evening in question. She did recall waking up in the middle of the night, with the applicant asleep next to her.

78 Secondly, the Crown led evidence from the complainant regarding the applicant's overall pattern of offending whereby she stated: 'I've lost track of how many times this occurred. It happened so frequently when mum was at work and I home in bed and John would tuck me in'.

79 Thirdly, the Crown led evidence of an incident, which the complainant said took place at the East Keilor address, in around late 2002. The applicant entered her bedroom to tuck her in. She said:

He got into my bed under the covers. He laid there and after a while he tried to touch me around my underwear. Straightaway I grabbed his wrist and pushed his hand away. John ended up at some stage getting out of my bed and out of my room.

80 The law regarding 'context evidence', particularly with regard to sexual offences, is far from clear. In Martin (a pseudonym) v The Queen,[12] this Court set out some of the principles that it considered governed this topic.

Before determining the outcome of this application, it is necessary to consider, albeit briefly, the current state of the law regarding so-called 'context evidence', particularly with regard to sexual offences.

The High Court addressed that issue in HML v The Queen. The case concerned three separate, unrelated trials in the District Court of South Australia in which three men were convicted of sexual offences, all of them involving a female relative who was at the time a minor. In each case the complainant gave evidence of previous acts of the accused against her which were additional to the acts with which he was charged.

In the first of the three cases, HML, the question was whether 'relationship evidence' could be admissible to provide 'context', and/or to support 'propensity reasoning'. There appeared to be broad agreement amongst members of the Court that evidence of uncharged sexual offences could be received and then used as evidence of one or other, or both, context or propensity.

Three members of the Court, Gleeson CJ, Crennan and Kiefel JJ, held that insofar as the evidence explained and rendered intelligible the complainant's account of the charged acts, or showed that she was not purporting to describe an isolated event in circumstances where, otherwise, her account might appear implausible, it was admissible subject to the general principles concerning probative value and prejudicial effect.

Three other members of the Court, Gummow, Kirby and Hayne JJ, took a different view. They said that the only relevant basis for admitting such evidence was to show that the accused had a sexual interest in the complainant, and that he had given effect to that desire by action. The trial judge had erred in admitting the evidence for any other purpose.

Justice Heydon concluded that the evidence of uncharged acts was admissible similar fact evidence capable of being used to establish propensity on the part of the accused to assault his daughter sexually, as a step towards proving his guilt of the charged acts. In those circumstances, it was unnecessary to decide whether the tender of that evidence could have been supported on any other basis, had that been the only basis relied upon. Once admitted, the evidence was capable of being employed for the other purposes relied upon which were incidental to, and not inconsistent with, the particular propensity purpose.

In the circumstances the appeal in HML was dismissed.

In the second of the three cases, SB, the trial judge had specifically directed the jury that the evidence of uncharged acts was potentially helpful in evaluating the complainant's evidence of the charged acts which 'may otherwise appear to be unreal or not fully comprehensible'. He had warned the jury against using the evidence to establish propensity.

In that case, the appeal was dismissed.

In OAE, the third of the three cases before the Court, the trial judge permitted the evidence of uncharged acts to be led as being relevant to show the nature of the relationship between the accused and the complainant, and to show that the alleged rape 'did not happen out of the blue'. He warned the jury against using the evidence to establish propensity. However, he did not give a direction about the standard of proof required of the evidence of other conduct.

In relation to this matter, the Court held by a 4 to 3 majority, that the appeal against conviction should be dismissed.

Gleeson CJ concluded that the only question to be determined by the trial judge in a case of this kind was one of relevance, not requiring a separate direction about the standard of proof of uncharged acts. Heydon and Crennan JJ expressed no opinion on this point. Kiefel J regarded a finding of propensity on circumstantial evidence as one involving a finding of an intermediate fact which ordinarily should be proved beyond reasonable doubt.

In separate judgments, the minority, Gummow, Kirby and Hayne JJ, concluded that the evidence of other sexual misconduct was so intertwined with the charged acts that a direction should have been given that the jury could not act upon it unless satisfied of the allegations beyond reasonable doubt. Their Honours added that the admissibility of evidence of uncharged acts was not to be determined by asking whether that evidence would put evidence about the charges being tried 'in context', or by asking whether it described or proved 'the relationship' between the complainant and the accused. The determinative question was whether there was a reasonable view of the similar fact evidence consistent with innocence, as stated in Pfenning v The Queen. If so, the evidence should be excluded.

It has been suggested that, as a result of HML, it remains unclear whether or not relationship evidence can avoid the propensity exclusionary rule by being treated as context evidence. Certainly, Gummow, Kirby and Hayne JJ, in their respective judgments, expressed doubts as to whether relationship evidence could ever be admitted purely in order to provide 'context', and it might be thought that Heydon J expressed similar doubts. However, his Honour was of the view that if such evidence was admissible as going to propensity it could also allow the evidence to be used to provide 'context'.

Kirby J was particularly critical of the use of terms such as 'context' or 'background'. He regarded these terms as too vague to justify bypassing the exclusionary rule. He said:

If such a vague criterion were adopted, virtually any evidence of discreditable conduct, uncharged in the information or indictment, would arguably be relevant and admissible in such a trial because every alleged crime has a 'context'.

Viewed in the way that some members of the Court in HML described, relationship evidence arising out of what were characterised as 'uncharged acts' serves as a form of credibility bolstering. No doubt that incidental effect is open, as well, where the evidence is also admissible for a propensity purpose. The problem that arises is what happens when, as in the present case, propensity reasoning is eschewed, and the evidence is sought to be led as context only? ...

That question and the directions to be given to a jury about the standard of proof of uncharged sexual acts were considered in Sadler v The Queen following the High Court decision in HML. The Court (Nettle, Redlich and Dodds-Streeton JJA) said:

With respect, therefore, on a strict analysis, we understand the law for the time being to remain that evidence of uncharged sexual acts, like evidence of other uncharged acts, may be tendered as relationship evidence put forward as demonstrating the context in which the charged offence was committed, and that, generally speaking, if it is tendered for that purpose alone, as opposed to establishing a sexual interest in the complainant and a disposition on the part of the accused to act to gratify that interest, it is not necessary for a trial judge to give separate directions about the standard of proof applicable to such uncharged acts, unless the judge perceives that the jury are likely to use the uncharged acts as a step in the reasoning towards guilt or that it is unrealistic to contemplate that any reasonable juror would differentiate between the reliability of the complainant's evidence as to the uncharged acts and as to the charged acts.

If so, it follows that the standard of proof applicable to uncharged acts, and the directions to be given to the jury as to the use which they may and may not make of evidence of the uncharged acts, will continue to vary according to whether the Crown relies on the evidence of uncharged acts to establish a propensity to commit acts of the kind which are charged or merely for contextual and explicative purposes ...

Prior to HML, the position under the pre-Hoch test which applies in Victoria was that:

1. The Crown was not to be permitted to rely on evidence of uncharged acts as establishing a propensity to commit acts of the kind charged unless the uncharged acts were strikingly similar to the charged acts or it was otherwise possible to discern such an underlying unity between the uncharged acts and the charged acts as to make coincidence an affront to common sense.
2. If the Crown satisfied that test and was thus permitted to rely upon evidence of uncharged acts as evidence of propensity to commit offences of the kind charged, the jury had to be directed that the uncharged acts as well as the charged acts must be proved beyond reasonable doubt.
3. The Crown was permitted to rely on evidence of uncharged acts for a purpose other than establishing propensity to commit offences of the kind charged (for example, to make intelligible a complainant's account of the charged acts, or to show that a complainant was not purporting to describe an isolated event or where a complainant's account might otherwise appear implausible) if the probative value of the evidence for that purpose so much outweighed its prejudicial effect as to make the receipt of the evidence just.
4. If the Crown satisfied that test, and was thus permitted to rely on evidence of uncharged acts for such a purpose only, but not for the purpose of establishing a propensity to commit offences of the kind charged or as making it more likely that the accused committed the crime (probability reasoning):
   1. the judge would ordinarily have directed the jury that they may only use the evidence for the purpose for which it has been admitted and for no other purpose; that the offences charged can only be proved by the evidence relating to those charges and not by evidence relating to the uncharged acts; and that they are not to reason from the evidence of the uncharged acts that the accused is the sort of man who is likely to have committed the offence charged; and
   2. in this circumstance, the judge was not required to give separate directions about the standard of proof applicable to that evidence.

Now, because of the limited ratio of HML, it appears that the position in Victoria remains largely the same. But having regard to what was said by Kirby, Hayne (and thus Gummow) and Heydon JJ, as to the likelihood of a jury treating uncharged sexual acts as evidence of propensity (regardless of the purpose for which it is tendered or the directions which may be given as to its use), we consider that there is one critical difference. Pending further guidance from the High Court, a judge should ordinarily assume that there is a real risk of the jury using evidence of uncharged sexual acts as a sufficiently important step in their process of reasoning to guilt to warrant particular mention and, therefore, the judge should ordinarily direct the jury that they should not conclude from the evidence of uncharged acts that the accused had a sexual interest in the complainant unless they are satisfied of those acts beyond reasonable doubt.

Subsequently in Roach v The Queen, the High Court in both the plurality judgment and the judgment of Heydon J briefly considered HML. In Roach, the trial judge directed the jury that the evidence of uncharged acts was led solely for the purpose of providing 'a true and proper context ' to enable the jury to 'properly understand' the events that were the subject of the count of assault on which the accused was presented. The plurality judgment stated that, in these circumstances, it was neither necessary nor appropriate for the trial judge to give the jury any direction about the standard of proof to be applied to the evidence of uncharged acts.

...

It must be acknowledged that HML has left the scope of the exclusionary rule at common law 'clouded in obscurity'. Certainly, there are problems associated with terminology in this area. There is a difference between speaking of 'uncharged acts', which suggests acts that but for some particular technical or other like impediment could have been the subject of particular counts, and acts of sexual misconduct which may not have that particular flavour. In that sense the case of unrebutted doli incapax fits more comfortably into the description 'relationship', or 'background' or 'context' than it does into 'uncharged acts'. The term 'sexual misconduct' falls somewhere between the two categories.[13]

82 In Martin, the Court went on to deal with the recent decision of the High Court in IMM v The Queen, [14] in which similarly complex issues were addressed, but this time under the general ambit of the Uniform Evidence Act. The Court said:

Recently, in IMM v The Queen, the High Court once again grappled with similarly complex issues. After a trial in the Supreme Court of the Northern Territory, the appellant was convicted on various charges involving sexual offending with a child under the age of 16. The complainant was his step-granddaughter, she alleged a course of sexual abuse extending over a period of eight years from when she was four until she was 12. Hers was the only direct evidence against the appellant.

Over objection from the defence the prosecution was permitted to adduced both 'tendency' evidence and 'complaint' evidence. The 'tendency' evidence was to the effect that while the complainant and another girl were giving the appellant a back massage, he ran his hand up the complainant's leg. This evidence was admitted as 'tendency' evidence, capable of showing that the appellant had a sexual interest in the complainant, and was said to have 'significant probative value'. The 'complaint' evidence was of complaints made to various others by the complainant concerning the appellant. That evidence was admitted as an exception to the hearsay rule under s 66 of the Evidence Act (NT). The trial judge declined to exclude it under s 137 of that Act.

The High Court, by majority, upheld the appeal. In doing so, it made no mention whatever of its earlier judgment in HML. In a joint judgment, French CJ, Kiefel, Bell and Keane JJ (with whom Gageler J relevantly agreed), made the following observation that is not easily reconciled with that earlier decision. For example,

[i]n a case of this kind, the probative value of this evidence lies in its capacity to support the credibility of a complainant's account. In cases where there is evidence from a source independent of the complainant, the requisite degree of probative value is more likely to be met. That is not to say that a complainant's unsupported evidence can never meet that test. It is possible that there may be some special features of a complainant's account of an uncharged incident which give it significant probative value. But without more, it is difficult to see how a complainant's evidence of conduct of a sexual kind from an occasion other than the charged acts can be regarded as having the requisite degree of probative value.

This passage, upon which the respondent placed particular reliance, has given rise to concern, since on a literal interpretation of what their Honours said, evidence of other sexual misconduct involving the same complainant, led as to context, would rarely be admissible. Such evidence, led to support the credibility of a complainant's account, will seldom itself be bolstered by evidence from a source independent of the complainant. Sexual offending against children normally takes places in circumstances of secrecy. As regards the possibility that there may be 'some special features' of a complainant's account of an uncharged incident that give it 'significant probative value,' the difficulty is in understanding what precisely the members of the Court had in mind in that regard.[15]

83 In the present case, the evidence led by the Crown from the complainant as to other acts of sexual misconduct by the applicant was plainly relevant. It explained why he felt sufficiently confident to engage in the most brazen offending, sometimes in the physical presence of the complainant's sister, or mother. It negated any suggestion that the charged acts occurred 'out of the blue'. And it provided an explanation as to why there had been a lengthy delay in the complainant coming forward and telling others about what the applicant had been doing. Without this evidence, the jury would have been left in ignorance of these matters, which bore upon the complainant's credibility.

Ground 3 - refusal to provide direction under s 43 of the Jury Directions Act

85 At trial, the defence sought a direction under s 43 of the Jury Directions Act[16] in respect of the Crown's failure to have called the complainant's sister as a witness. That section provides:

(1) If the prosecution does not call or question a particular witness, defence counsel may request under section 12 that the trial judge direct the jury on that fact.

(2) The trial judge may direct the jury as referred to in subsection (1) only if the trial judge is satisfied that the prosecution -

(a) was reasonably expected to call or question the witness; and

(b) has not satisfactorily explained why it did not call or question the witness.

(3) In giving a direction referred to in subsection (1), the trial judge may inform the jury that it may conclude that the witness would not have assisted the prosecution's case.

86 The section essentially replicates in statutory form the common law doctrine reflected in Jones v Dunkel.[17]

87 It will be recalled that when the offences designated as charges 2 and 3 were allegedly committed, the complainant said her sister was in the bedroom, probably asleep.

88 Based on statements made to the police, the sister was in a position to give some relevant evidence. She could, for example, confirm the complainant's account of the applicant's having regularly adopted various spiritual persona. She was also in a position to give evidence of the complainant's having told her what the applicant had been doing.

89 However, the position was vastly complicated by the fact that the complainant's sister claimed that the applicant had also sexually abused her. The sister's allegations were the subject of a separate trial that was conducted after the present trial had been completed.

90 It was made clear from the very outset of the trial involving the complainant that the Crown did not propose to call the sister to give evidence. Senior counsel who appeared for the applicant at trial made no complaint about this. That was hardly surprising. The high probability was that the sister, if called, would have further strengthened the prosecution case by confirming the complainant's account (as well as that of their mother), regarding the applicant's constant use of persona.[18]

91 On the other hand, the sister had no relevant evidence to give regarding the commission of the actual offences themselves. It will be recalled that the complainant suggested that her sister was asleep when the offences giving rise to charges 2 and 3 were committed. If so, she could say nothing of any relevance regarding those specific offences.

92 It was submitted on behalf of the applicant that the trial judge's refusal to give the direction sought under s 43 gave rise to a miscarriage of justice. That was a somewhat bold, if not altogether audacious, submission. Almost certainly, the applicant benefited greatly from the sister not being called. Indeed, the last thing he would have wanted would have been to have her confirm, in part, the complainant's own evidence.

93 In these circumstances, it would have been misleading had the judge directed the jury that they could infer from the Crown's decision not to call the sister that her evidence would not have assisted the prosecution case. The true position was that, had she been called, her evidence would substantially have assisted the case against the applicant. Moreover, in circumstances where it can be concluded that the defence did not wish the Crown to call the witness, it will not ordinarily be appropriate that such a direction be given.

94 The Crown, and the defence too, sensibly recognised that there would have been serious risks associated with the sister giving evidence in this trial. The context in which she would have recounted what the complainant had said to her, and her evidence regarding the applicant's adoption of persona, would almost certainly have resulted in the jury becoming aware that the applicant had allegedly offended against her as well.

95 There is no merit in ground 3. Leave to appeal should be refused on that ground.

96 The applicant submitted that the charges which attracted guilty verdicts did not have sufficient cogency to convince the jury. He relied on 13 separate factors, viewed individually, and in combination with each other. These were:

(i) The fact that the evidence of abuse was not supported by independent evidence.

(ii) The forensic disadvantage suffered by the accused.

(iii) The delay of some 10 years in complaint to the police.

(iv) The lack of any mention of the applicant's alleged conduct in the complainant's diaries during the relevant period.

(v) SB's evidence that the complainant had told her that she had been forced by the applicant to given him 'blow jobs', a claim that the complainant denied.

(vi) The complainant's denial of any abuse when asked by her mother whether that had occurred.

(vii) The account of the Strathmore Primary School 'adventure', which, according to SB, had to be a fantasy.

(viii) The complainant's contact with, and exposure to, her aunt (her mother's sister) who exhibited split personalities, and bizarre behaviour.

(ix) The 'startling' acceptance by the complainant of the applicant's engagement with the 'personas' which spoke of a 'mental illness' on the part of the complainant.

(x) The evidence that the complainant was able, if required, to recite her police statement almost verbatim.

(xi) The complainant's apparent affection for the applicant, and her adoption of his surname at the relevant time.

97 The Crown submitted that the matters relied on by the applicant, apart from the complaint to SB of forced oral penile abuse, were common features of sexual offence trials. They were all clearly and fully exposed before the jury, and were simply matters they could take into account in reaching their verdict on the charges. Self-evidently, they were all matters which could have given rise to a reasonable doubt as to the applicant's guilt. However, none of them, on their own, or taken together, obliged the jury to have such a doubt. Similarly, this Court, having regard to the evidence as a whole, should not entertain any such doubt.

98 The jury were entitled to accept the complainant's evidence regarding the applicant's use of spiritual personas. That evidence was supported by her mother's testimony, and to some degree also by the tender of a book authored by the applicant entitled 'The Gathering of the Fairy Horses'. There was no warrant for the suggestion that the complainant was mentally ill.

99 It is well established that an appellate court, when considering the 'unsafe or unsatisfactory' ground should adopt the following approach:

1. The court of criminal appeal must ask itself whether, upon the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty.
2. In considering that question, the appeal court must bear in mind that the jury has the primary responsibility of determining guilt or innocence and has had the benefit of seeing and hearing the witnesses.
3. In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced.
4. It is only where a jury's advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred.[19]

100 It is not sufficient for the applicant to demonstrate that the jury might have entertained a doubt about his guilt. Rather, the question is whether the jury must have entertained such a doubt.

101 In M v The Queen the High Court phrased the test to be applied as follows:

Was it reasonably open to the jury to be satisfied beyond reasonable doubt of the accused's guilt?[20]

102 Subsequently, in SKA v The Queen,[21] the High Court again considered the approach to be taken to a ground such as this. It was held to be wrong for the intermediate appellate court to concern itself with 'whether, as a question of law, there was evidence to support the verdicts, rather than making its own independent assessment of the evidence'.[22]

103 In a joint judgment, French CJ, Gummow and Keifel JJ said that the appellate court 'was required to determine whether the evidence was such that it was open to a jury to conclude beyond reasonable doubt that the appellant was guilty of the offences with which he was charged'.[23]

But the question for an appellate court is whether it was open to the jury to be satisfied of guilt beyond reasonable doubt, which is to say whether the jury must, as distinct from might, have entertained a doubt about the appellant's guilt. It is not sufficient to show that there was material which might have been taken by the jury to be sufficient to preclude satisfaction of guilt to the requisite standard.[24]

105 In The Queen v Nguyen, the High Court observed that in considering whether it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty:

[T]he court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses. On the contrary, the court must pay full regard to those considerations.[25]

106 Returning to the present case, the Crown submitted that the complainant was entitled to be viewed as a credible witness, and the jury were therefore entitled to act upon her evidence.

107 In our view, whatever difficulties there were with aspects of the complainant's evidence, it cannot be said that the jury were obliged to reject her account. There was sufficient support for her allegations, in the evidence given by her mother, to have enabled the jury to accept that account. Accordingly, ground 4 must fail.

The application for leave to appeal against sentence

108 As previously indicated, the applicant has sought leave to appeal against sentence relying essentially upon the sole ground that it was manifestly excessive.

109 It was submitted that, because of the applicant's age, lack of prior or subsequent convictions, his having been a person of good character, his service for many years in the British Army, and his impeccable work record, the sentencing judge, having found that there was little or no need for specific deterrence, should have imposed a significantly lesser total effective sentence than the nine years that he did.

110 In support of that submission the applicant relied upon a sentencing snapshot produced by the Sentencing Advisory Council. That Snapshot noted that the median length of imprisonment for an offence of this nature was of the order of 4 years and 6 months. The sentence of 9 years' imprisonment equalled the longest sentence that had been imposed for offending of this kind.

111 The applicant could not identify any cases which involved offences that were closely comparable to those which he committed, and from which relevant sentencing principles could be distilled.

112 In further written submissions filed with the Court, the applicant provided what he submitted was a review of 'current sentencing practice' in this area. He conceded, however, that it was difficult to draw direct parallels from other cases. A number of them involved other charges such as incest, related to offending which took place when the accused was a very young child, or occurred in circumstances where the accused used a carriage service to communicate with children.[26]

113 The respondent submitted that the individual sentences of five years' imprisonment for each charge, together with orders for cumulation of six months' imprisonment, and the total effective sentence of nine years' imprisonment were all within range.

114 The respondent pointed to a number of cases where the offenders had taken matters to trial, and accordingly not been entitled to the significant sentencing discount for pleading guilty. The respondent also pointed to cases where the offenders had received sentences of five years' imprisonment for offences of sexual penetration of a child under the age of 16 and, in circumstances where the maximum penalty was only 10 years' imprisonment because it was not the aggravated version of the offence involving the element of care, supervision or authority.

115 The respondent referred specifically to Smith v The Queen,[27] in which this Court refused an application for an extension of time within which to seek leave to appeal against sentence. There the applicant had been convicted of one charge of sexual penetration of a child under 16. The victim was 14 when the offending took place. The applicant was in a relationship with the victim's mother at the time, and was living in the family home. He fondled the victim's breasts as well as engaging in digital, oral and penile penetration. This offending occurred over a three month period. The applicant had no prior convictions, and showed no remorse at trial.

116 The applicant was sentenced on the individual sexual penetration charges to imprisonment terms of 18 months, four years, five years, four years and five years respectively, with orders for cumulation ranging between six months and 18 months. This led to a total effective sentence of eight years and six months' imprisonment, with a non-parole period of six years.

117 In refusing an extension of time, Lasry AJA (with whom Redlich JA agreed), observed that the sentence was 'stern'.[28] However, his Honour was not persuaded that an appeal against sentence was likely to succeed.

118 The respondent also referred to LQ v The Queen,[29] in which the applicant had been convicted on a number of charges of indecent assault, as well as four charges of sexual penetration of a child under 16, and one charge of sexual penetration of a child under 10. The applicant was the victim's uncle by marriage, and the offending included both digital and oral penetration. He was sentenced to five years' imprisonment on each charge of sexual penetration of a child under 16. This Court held that the sentence of nine years' imprisonment, with a non-parole period of six years and six months was not manifestly excessive.[30]

119 The respondent submitted that the snapshot to which the applicant referred had to be treated with caution. It demonstrated that in the period between 2009 and 2014, only 18 individuals were sentenced for this offence. That was a small sample group. Moreover, the statistics did not reveal the proportion of persons who, like the applicant, had contested the allegations against them and were not entitled to the mitigating factor of a plea of guilty.

The utility of aggregate statistics is, inevitably, limited by the absence of information about the individual sentencing decisions, as to whether the sentenced person had pleaded guilty or not guilty and whether there were other mitigating or aggravating features which affected the sentence. [31]

121 The respondent submitted that the applicant's offending in this case was particularly serious. The victim was a vulnerable girl aged 13 to 14. She had been entrusted into his care. His offending had had devastating consequences for the victim and her family. It encompassed seven separate incidents, over a lengthy period of time. It included acts of digital, lingual and vaginal penetration. There was no remorse whatever, and the victim had been made to endure the 'ordeal' of cross-examination.

122 The respondent further submitted that, when considering the facts of this case and the 'yardstick' provided by comparative cases, the sentences of 5 years' imprisonment imposed for each of the charges proved were within range. The orders for cumulation were moderate, especially as the applicant fell to be sentenced as a serious sexual offender on charges 3, 4, 6, 7, 8, 9 and 11.

123 It was submitted that the determination of current sentencing practice usually required some consideration of comparable cases, 'balanced against a keen appreciation of the necessity to do justice in the particular case'.[32] As this Court recently stated in Nguyen v The Queen,[33] comparable cases provide a yardstick against which to examine a proposed sentence. In that case, Redlich JA (with whom Tate and Whelan JJA relevantly agreed) said:

The need for the judge to be provided with what has been done in other (more or less) comparable cases was stressed in the joint reasons in Barbaro v The Queen. In Hili, the plurality referred to Director of Public Prosecutions (Cth) v De La Rosa and the use of information about sentences that have been passed in other cases, that history of sentencing establishing a range of sentences that have in fact been imposed. The importance of the sentencing patterns disclosed by that history were recognised by the plurality in Hili to be of considerable significance, in that they result from the application of the accumulated experience and wisdom of first instance judges and of appellate courts. As the plurality state in Hili, Barbaro and Pham, those comparable cases, whilst not marking the outer bounds of the sentencing discretion, may well establish a range of sentences which have been imposed. Past sentences provide guidance to sentencing judges, and to appellate courts, and stand as a yardstick against which to examine a proposed sentence.

Reasonable consistency is thus achieved by the maintenance of an appropriate relativity between the impugned sentence and similar comparators. Manifest inadequacy or excess is usually demonstrated when an appropriate relativity is absent between the nature of the offending and matters personal to the offender, and sentences imposed in the most closely comparable cases. Thus for example, in Dao v The Queen Nettle JA (as he then was) emphasised that the consistency stated in Wong required that the impugned sentence be in step with 'relevant comparators'.[34]

124 In our view, the individual sentences, the total effective sentence, and the non-parole period fixed were all with range. Leave to appeal against sentence should be refused.

[2] Ibid 614 [25] (citations omitted).

[3] Ibid 616-8 [33]-[35] (citations omitted).

[4] Ibid 630-1 [84]-[86] (citations omitted).

[5] R v JA [2008] VSCA 169; R v Carter [2009] VSCA 272; Aidid v The Queen (2010) 25 VR 593; GAP v The Queen [2011] VSCA 173; Pillay v The Queen [2014] VSCA 249; (2014) 43 VR 327; Avery (a pseudonym) v The Queen [2014] VSCA 86; Janes v The Queen [2015] VSCA 133. In Tandy (a pseudonym) v The Queen [2016] VSCA 229, the Court did not find it necessary to deal with an inconsistent verdicts ground on the basis that this point was subsumed by a contention that the convictions were unsafe or unsatisfactory.

[6] [2009] VSCA 272, [18] (citation omitted).

[7] [2014] VSCA 249; (2014) 43 VR 327, 331 [26] (citation omitted).

[8] [2015] VSCA 133, [6].

[9] [2014] VSCA 86.

[12] [2016] VSCA 219 ('Martin').

[13] Ibid [81]-[101] (citations omitted).

[14] [2016] HCA 14; (2016) 330 ALR 382 ('IMM').

[15] Martin [2016] VSCA 219, [102]-[105].

[16] Pursuant to s 12 of the Jury Directions Act 2015.

[18] This would have been of particular significance given that the applicant, when interviewed by police, denied ever having adopted any such persona.

[19] R v Klamo [2008] VSCA 75; (2008) 18 VR 644. See also M v The Queen [1994] HCA 63; (1994) 181 CLR 487, 493-4 (Mason CJ, Deane, Dawson and Toohey JJ); Jones v The Queen [1997] HCA 12; (1997) 191 CLR 439, 451-2 (Gaudron, McHugh and Gummow JJ); Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300, 316 [41] (The Court); R v Tiburcy [2007] VSCA 124, [5] (Nettle JA).

[20] [1994] HCA 63; (1994) 181 CLR 487, 498 (Mason CJ, Deane, Dawson and Toohey JJ).

[21] [2011] HCA 13; (2011) 243 CLR 400.

[24] [2007] HCA 30; (2007) 230 CLR 559, 596-7.

[25] [2010] HCA 38; (2010) 242 CLR 491, 499-500 (Hayne, Heydon, Crennan, Kiefel and Bell JJ) citing M v The Queen [1994] HCA 63; (1994) 181 CLR 487. See also SKA v The Queen [2011] HCA 13; (2011) 243 CLR 400, 405 (French, Gummow and Kiefel JJ).

[26] DPP v OJA [2007] VSCA 129; R v Bellerby [2009] VSCA 59; R v HJM [2009] VSCA 267; DPP v CPD [2009] VSCA 114; Pettiford v R [2011] VSCA 9; Clarkson v R [2011] VSCA 157; DPP v Husar [2011] VSCA 70; DPP v Wightley [2011] VSCA 74; Davy v R [2011] VSCA 98; Macfie v R [2012] VSCA 314; SJ v R [2012] VSCA 237; Avery v R [2014] VSCA 86; DPP v Chatterton [2014] VSCA 1; Bauer v R [2015] VSCA 55; DPP v Dalgliesh [2016] VSCA 148.

[27] [2013] VSCA 310.

[29] [2011] VSCA 135.

[30] The Court did, however, resentence the applicant by reason of a lesser conviction having to be substituted for one of the counts upon which he was convicted. The resentencing exercise reduced the sentence to one of eight years' imprisonment with a non-parole period of five years and six months.

[31] [2009] VSCA 114; (2009) 22 VR 533, 547.

[32] Hudson v The Queen (2010) 30 VR 610.

[33] [2016] VSCA 198.

[34] Ibid [71]-[72] (citations omitted).