Bhatia v R

Court of Criminal Appeal (NSW)|2022-09-23|Before: Beech-Jones CJ, Hamill J, Adams J

The application for leave to appeal against the sentence

The applicant was sentenced to imprisonment for 10 years with a non-parole period of 6 years. The offence for which the applicant was convicted carried a maximum penalty of life imprisonment and a standard non-parole period of 15 years. [10] The applicant was not entitled to any reduction for pleading guilty but was not to be punished for defending the charge.
His Honour found that the offence fell "slightly below the middle of the range" of offences of its kind. This finding, which was not challenged on the appeal, was based on a number of considerations including (as summarised by the respondent in its written submissions): "(a) The act of fellatio caused the child to gag and feel sick; (b) The child was aged six years and eight months which was considerably younger than being just under 10 years of age; (c) The offence occurred in the home of GS and while he was in the care of the appellant. The fact that it occurred in the home of GS was a serious breach of trust and is an aggravating factor; (d) There was no physical force or threat used at the time of the offence and the applicant relied upon his natural authority and influence of being an adult. However, there was a threat made afterwards; (e) The offence was opportunistic in that the applicant took advantage of the circumstances; and (f) It was not an isolated act; however it was not a matter where there was a pattern of repetitive abuse frequently associated with such offences."

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

This first ground of appeal is based on the following passage in the sentencing judgment: "The victim gave evidence that the offender had the victim fellate him before in days prior to Saturday 5 October 2019 when babysitting the boy on his own. There was some uncertainty about whether this had occurred on Thursday, 3 October or Friday 4 October. The offender denied this occurred. The victim made a good impression on me and I find the offender did have the victim fellate him on an occasion before Saturday 5 October, whether it was Thursday or Friday."
His Honour went on to reject a submission that this finding was contrary to the jury's verdicts and to stress that he did not take the finding into account as an aggravating feature. His Honour was conscious of the fact that the applicant was "only [to be] sentenced in respect to the offence of which the jury found him guilty."
On appeal, Mr Moutasallem (who did not appear at the trial or on sentence) did not suggest that the finding was inconsistent with the jury's verdict. Rather, he stressed the confusing and inconsistent accounts provided by the complainant and the fact that it was a finding adverse to the applicant and, accordingly, had to be made to the criminal standard, that is beyond reasonable doubt. It was submitted that the evidence was so unsatisfactory that it was "not open" to make the finding beyond reasonable doubt. (I will put aside any controversy as to the standard of review and deal with the submission on its terms).
I have set out some of the relevant parts of the complainant's evidence in dealing with the conviction appeal. It is correct that the child's evidence as to other, earlier acts was somewhat confusing and that there were apparent inconsistencies as to the number of times it happened. The sentencing Judge did not act on parts of the child's evidence, such as his evidence that the applicant "always lets me lick his penis", that the first time it happened was "a long time ago" or that it happened on three consecutive days. Similarly, the Judge did not refer to the evidence that the applicant licked his penis (and other intimate parts of his body) "like 20 or 30 times".
However, the infelicities in the evidence had to be considered in the context that it was given by a 6- or 7-year-old child. It was clear, as Judge Arnott said, that the child asserted that the incident on the Friday was not the first, or only, occasion when such conduct occurred. The language the child used throughout his evidence suggested strongly that there was at least one earlier incident.
Judge Arnott presided over the trial and said the witness "made a good impression" on him. I am not persuaded that his Honour fell into error in making the finding that he did. While he did not couch his findings in those terms, I have no doubt that his Honour applied the criminal standard to the issue and the submissions were framed (correctly) on an assumption that his Honour made the impugned finding beyond reasonable doubt.
I would reject ground 2.

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

The language of this ground appeared to be taken from the judgment of Ierace J in BR v R [2021] NSWCCA 279, which was quoted in the applicant's written submissions. Ierace J (with whom Payne JA and Davies J agreed) upheld a single ground of appeal that the sentence imposed was manifestly excessive. The judgment identified a number specific errors in the approach taken in the District Court. This included the sentencing Judge's approach to a psychologist's report and to evidence of the offender's more onerous conditions of incarceration. In the latter context, Ierace J said: "Although the applicant's evidence was not detailed as to the restrictions he experienced by being a prisoner on protection, he was at least entitled to it being taken into account in a general sense, as observed by Hoeben JA in C v R (2013) 229 A Crim R 233; [2013] NSWCCA 81 at [42] and noted with approval by Bathurst CJ in Zahab extracted at [143] above." (My emphasis.)
At [123] and following, Ierace J criticised the sentencing Judge's comment that "the applicant's circumstances of imprisonment were no different than for other sex offenders and thus did not warrant mitigation". This approach was not consistent with observations of this Court, including those by Bathurst CJ in the case of Zahab v R [2021] NSWCCA 7 at [47]-[50].
The present case is very different.
First, Judge Arnott did not make the kind of findings of which this Court was critical in BR v R, namely that the conditions of incarceration were the same for other sex offenders. Secondly, while Judge Arnott did not deal expressly with the protective custody arising from the nature of the crime, his Honour was very conscious of the more onerous conditions of incarceration faced by the applicant. His Honour made specific reference to the restrictions arising from the COVID-19 pandemic, the applicant's circumstances of isolation and lack of support while in custody, and his health difficulties including the symptoms of being an insulin-dependent diabetic. As I have observed, his Honour made a substantial reduction to the non-parole period partly because of these onerous conditions.
I am not persuaded that his Honour disregarded the conditions of custody or ignored the evidence and submissions that the applicant was in protective custody.
I am unable to uphold ground 3.

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

The final proposed ground of appeal against the sentence imposed on the applicant raises questions about the scope and operation of s 21A(5A) of the Crimes (Sentencing Procedure) Act.
Before addressing those questions, it should be stated emphatically that whether the section attaches to a particular sentencing exercise will turn on the facts and circumstances of the case. It is inappropriate to attempt to lay down prescriptive rules. The terms of the provision mean that, while some cases will clearly be caught by the section, and others clearly will not, there are many cases on the fringes, where the issue may be difficult to resolve.
The section provides an exception to the general rule that an offender may rely on their previous good character and lack of prior convictions as a mitigating factor on sentence. That is a long-standing rule in the common law and is also reflected in s 21A(3)(e) and (f) of the Crimes (Sentencing Procedure) Act. The common law has also long held that in some circumstances an offender's previous good character is entitled to little or no weight. [11]
Sub-section 21A(5A) was introduced in 2008 as part of a raft of amendments to sentencing legislation and the Crimes Act. [12] Sub-section (5A) commenced on 1 January 2009 and provides: (5A) Special rules for child sexual offences In determining the appropriate sentence for a child sexual offence, the good character or lack of previous convictions of an offender is not to be taken into account as a mitigating factor if the court is satisfied that the factor concerned was of assistance to the offender in the commission of the offence.
The trial Judge made the following observations in resolving the dispute between the parties as to whether the section applied to the applicant's case: "Ms Ellis submitted, referring to the decision in AH v R [2015] NSWCCA 51, that I was not prevented from taking into account his prior good character because I would not make a finding that his prior good character and lack of convictions was of assistance to him in the commission of the offence. In making this submission, she highlighted the following matters: That the offender's relationship with the victim's family commenced before the boy was born and she described him being like a 'family member'. She submitted that the offender was like an uncle to the boy, that he stayed at the house a number of days a week babysitting the boy and had access to the family before the boy was born. I accept that the offender did not have access to the boy as would a teacher, a sports coach or pastor, or as in the case of AH, because the offender was the partner of the boy's mother. However, I consider the present case more akin to that of O'Brien v R [2013] NSWCCA 197, which is referred to in the case of AH. O'Brien was a case involving the sexual abuse of a girl by an offender who had befriended her family. He had frequently visited the victim's grandparents' home and sometimes took the victim and other members of her family spotlighting in rural properties. At the time the offending in that case occurred, the victim had moved from her father's home in Wollongong to live with her mother who lived in the small town where the offender in that case lived. And the mother and the child lived with the child's grandparents. In other words. I consider the present case does fall within [s 21A(5A)] because the offender's long relationship with the victim's family and the fact that this and his good character enabled him to babysit, gave access to the child."
I am unable to agree with the sentencing Judge that the present case is "more akin" to the case of O'Brien v R than to AH v R. I have reached the contrary opinion. For one thing, the issue was not directly raised in O'Brien v R, whereas it was subject to a ground of appeal in AH v R. There were also some factual differences between the cases.
In O'Brien v R the issue was not the subject of a ground of appeal. The grounds in that case were that the Judge wrongly applied a two-stage approach to sentencing and that the sentence was manifestly excessive. Those grounds were rejected and the comments made by Adamson J (with whom Hidden and Latham JJ agreed) were made in the context of considering those grounds and the sentence imposed on the applicant: "39. The sentencing judge's assessment of the objective seriousness of the offences appears from the passage set out above. I am unable to detect any error in his Honour's approach or in the sentence imposed. The applicant's conduct was deliberate, premeditated and exploited the trust reposed in him not only by the victim herself, but also by the victim's mother and grandparents. He used his good character to gain access to the victim and to gain her trust. By failing to take any precautions he twice exposed her to the risk of pregnancy. The offences for which he was sentenced are serious offences. 40. If his Honour made any error in fixing the total term, it was to take into account the applicant's good character and lack of previous convictions as a mitigating factor in the applicant's favour, when s 21A(5A) of the Act arguably precluded its being taken into account in that way since his good character appears to have been of assistance to him in the commission of the offences. This provision was not raised at the sentence hearing. Accordingly I do not accept the applicant's submission that the sentencing judge must have been satisfied that it did not apply. However, as his Honour took into account these matters in the applicant's favour, it is not necessary to consider the provision further." (My emphasis.)
Her Honour's observations were obiter and framed in guarded language (that is, s 21A(5A) "arguably" applied). They related to the fact that the offences were premeditated, and that the offender made arrangements with the victim's family to take her on outings when they would be alone. The applicant met the child when she was 9 years old through her grandparents and the offences took place when she was 14. The applicant was married with two children and had made valuable contributions to the local community through the rural fire service.
In AH v R, the offender committed a number of sexual offences against his de facto wife's 9-year-old daughter over a period of 14-15 months. The sentencing Judge applied the provision in s 21A(5A), saying "his good character was a factor which was of assistance to him in the commission of these offences." However, the basis of that finding was not explained. The applicant raised a particular ground to the same effect as that pursued by the applicant in the current appeal.
Hidden J (who agreed with Adamson J in O'Brien v R, and with whom Beazley P and Fullerton J agreed) set out the submissions of the parties and resolved the issue in favour of the applicant: "22 Mr Hunt [as his Honour then was] submitted that the applicant's good character played no part in his obtaining access to the victim. He was not exercising a role in the community which might have afforded him access to children, such as a teacher, sports coach or pastor. He also contrasted the present case with O'Brien v R [2013] NSWCCA 197, a case involving the sexual abuse of a girl by an offender who had befriended her family. Adamson J, with whom Latham J and I agreed, noted at [25] that he had been a responsible and helpful member of his community, and observed at [39] that he had 'used his good character to gain access to the victim and to gain her trust.' 23 The Crown prosecutor in this court argued that the finding was open to her Honour, noting the applicant's relationship with the victim's mother, the period of time over which the offences were committed and the breach of trust which they involved. She referred to the following passage from the judgment of Fullerton J, with whom Spigelman CJ and Barr J agreed, in R v PGM [2008] NSWCCA 172, 187 A Crim R 152 at [44] (162-3): 'In this case, while his Honour was entitled to take the respondent's previous good character into account, to afford it "very significant weight," in my view, failed to recognise the pattern of repeat offending over a period of seven months in the course of an ongoing relationship between the respondent and the child - a relationship which was deliberately fostered by him for his own sexual gratification. Where these features are present a finding that the criminal conduct is out of character fails to recognise that a determined and conscious course of offending, perhaps in the expectation that the child may not see the offending conduct as wrong thereby both avoiding detection and maximising the opportunity for repeated offending, diminishes the mitigating impact of a finding of good character (see R v Kennedy [2000] NSWCCA 527 at [21] and R v ABS [2005] NSWCCA 255 where at [25] Buddin J emphasised that repeat offending in the context of sexual offences deprives on offender of a claim for leniency that might otherwise be available where the offending was spontaneous and only involves an isolated incident).' 24 PGM was decided before s 21A(5A) came into operation, and the decision does not address the particular issue raised by the subsection. The passage from the judgment of Fullerton J remains relevant to an assessment of the significance of good character in child sexual assault cases, and is clearly apposite in the present case. However, it is not relevant to the particular issue raised by subs (5A), which is directed to the question whether an offender's good character facilitated his commission of a child sexual offence. 25 Mr Hunt's argument on this ground should be accepted. Whatever be the ambit of subs (5A), it is not applicable to the present case. Obviously, his relationship with the victim's mother and the trust which that engendered created an environment in which the offences could be committed. It does not appear to me, however, that his good character could be said to have assisted his commission of the offences. This ground is made out."
In R v Stoupe [2015] NSWCCA 175, the subsection was applied where the offender was a child-care worker and it could be assumed that he obtained that position by virtue of his good character. In Thomas v R [2019] NSWCCA 265 a "contingent" indication that the section would apply to a teacher in a Catholic school was not disturbed on appeal. The finding was provisional because the sentencing Judge did not find the offender to be a person of good character because of tendency evidence that had been led at the trial. R v Stoupe and Thomas v R are examples where the application of the section presented no real difficulty; it was obviously applicable.
While they are not binding on this Court, there are a number of District Court decisions in which Judges at first instance have held (persuasively) that the situation is different in cases involving relatives, family friends and foster parents: see, for example, R v Flax [2014] NSWDC 268 (Cogswell SC DCJ) at [9], [32], R v NC [2020] NSWDC 547 (Lerve DCJ) at [46]-[52], R v DSM [2021] NSWDC 283 (Bourke SC DCJ) at [22], R v Sanchez [2021] NSWDC 561 (Montgomery DCJ) at [54] and R v Duncan [2022] NSWDC 543 (Tupman DCJ) at [62]-[64].
For completeness, I mention the case of GG v R [2018] NSWCCA 280. That case involved a stepfather sexually interfering with a teenage girl. Payne JA expressed the view at [10] that s 21A(5A) did not apply because his Honour was not satisfied that "the offender's good character of lack of previous convictions was of assistance to the offender in the commission of the offence". Schmidt J at [92]-[99] came to the contrary view. The third member of the Court, Fagan J, at [144]-[145], did not attempt to resolve the issue. The judgments in GG v R demonstrate, first, that the issue was not an important one in the resolution of the appeal and, secondly, that the provision was not brought to the attention of the sentencing Judge.
In the present case, the applicant was a family friend for many years before the child was born. There was nothing to suggest he befriended the family to gain access to the child. The child was yet to be born. The mother's evidence (at trial) explained the nature of the relationship. She said she knew Mr Bhatia "back from my country" and met him on her wedding day in 2004. He was her husband's friend. She agreed in cross-examination that the applicant was "like a brother" to her and "like an uncle" to GS.
The child's father said he met the applicant "about 20 years ago". He thought the applicant was about 30 years old. They remained in contact when they came to Australia. In 2018 he and his wife arranged for the applicant to babysit because of their work commitments. It was an ongoing arrangement depending on clashes in their employment rosters. In cross-examination he agreed he had known the applicant for 30 years, that the applicant attended his wedding and was "like a brother" to him.
Neither parent gave any evidence that the applicant's character played any role in their decision to allow him to babysit their son. Apart from explaining the length and nature of their relationship, and that he was like a brother to them and an uncle to their child, neither provided any opinion that they thought he was a person of good character. There was no evidence that they were aware he had no prior convictions.
The language of the section is quite broad and is apt to catch a wider range of offenders than those who trade on their trusted position and good reputation to gain access to unsuspecting children because the child or parent is misled into believing the perpetrator is a person of good character. Some obvious examples would include priests and other members of the clergy, politicians, teaches and community leaders. The section would also apply to offenders, with no other connection to the family, who act as babysitters or carers by providing references attesting to their good character and reputation. It may also apply, in some instances, to family friends and relatives, but only where there is evidence going beyond the fact of the relationship and which suggests that the offender's good character or reputation played a role in assisting them to gain access to the child or to commit the offence. As I said at the outset, it would be wrong to be prescriptive and the application of the section turns on the facts of the individual case.
The second reading speech does not cast a great deal of light on the scope of the section. The Attorney-General made the following observations about the provision: "The bill also makes important changes to the Crimes (Sentencing Procedure) Act 1999 to ensure that when sentencing an offender for a child sexual offence the court is not to take into account the offender's prior good character or lack of previous convictions if that factor was of assistance to the offender in the commission of the offence. The simple fact of a person's clean record and good character may assist an offender to gain the trust of the child, or the child's parents, in order to commit a sexual offence against the child. Any offender who has misused his or her perceived trustworthiness and honesty in this way cannot use his or her good character and clean record as a mitigating factor in sentencing." [13]
The reference to an offender "misusing his or her perceived trustworthiness and honesty" suggests there should be some active use of good character. There was no such evidence in the present case.
I accept the applicant's submission that the sentencing Judge erred in applying s 21A(5A) and in failing to take the applicant's good character into account as a mitigating factor.
I would uphold ground 4. Accordingly, it is necessary to consider the sentencing discretion afresh. If a less severe sentence is warranted the appeal against sentence should be upheld.

Re-sentencing

In exercising the sentencing discretion afresh, I would generally adopt Judge Arnott's findings on sentence. In particular: 1. The offences fall slightly below the putative mid-range of objective seriousness for the reasons given by his Honour. These are set out in summary form at [110] above. I would emphasise that the substantial breach of trust and the commission of the offence in the child's home were significant factors in an assessment of the objective gravity of the offence. 2. Accepting the child's evidence and adopting the sentencing Judge's findings, the offence was not entirely isolated and there was a similar incident in the days preceding the charged offence. However, it is a not a case of ongoing offending over a lengthy period; the offence was opportunistic and spontaneous and was repeated on one occasion, probably the day before. 3. The applicant expressed no remorse and demonstrated no insight into his offending or the possible impact on the victim. The potential impact of such offences on victims is notorious and must be considered in sentencing. 4. The applicant has no previous criminal convictions and is a person of prior good character. His conviction for such a serious offence deprives him of this description but it remains a mitigating factor in the current sentencing exercise. [14] Section 21A(5A) does not apply and it is not a case, like many other child sexual assault cases, where there was a lengthy period of uncharged offending which deprives the offender of a finding of good character. 5. The applicant's time in custody is particularly onerous due to his medical condition and his estrangement from his family and consequent isolation and lack of support. He has served a good deal of his sentence in protective custody and has endured the strictures involved in the prison authority's response to the COVID-19 pandemic. This matter has particular relevance to the non-parole period but is also relevant to the total sentence. There is no guarantee in a case such as this that the offender will be released at the conclusion of the non-parole period. 6. I agree with the sentencing Judge that, given the specific circumstances of the offending and Mr Bhatia's prior good character, that the applicant has reasonable prospects of rehabilitation. Given those matters, and the salutary impact of the inevitably lengthy period of imprisonment it is unlikely that he will offend again. 7. There are special circumstances allowing for a reduction in the non-parole period. These include the onerous conditions of incarceration, the fact that the applicant has not previously been incarcerated, and the desirability that the applicant has a substantial period of supervision and assistance in re-entering the community.
I have kept in mind the maximum penalty and applicable standard non-parole period and used them as yardsticks in determining an appropriate sentence. I have considered the various purposes of punishment. [15] The need for the community to know that sexual crimes against young children will be met with stern punishment is a particularly important requirement in sentencing for offences of this kind. The sentence must also reflect the potential harm done to the victim and must ensure that the offender is adequately punished. This conduct must be denounced. There is also room for some moderation of the severity of the sentence to attempt to foster the applicant's rehabilitation.
While acknowledging the bluntness of the tool, and their limited utility, I consulted the statistics maintained by the NSW Judicial Commission. One interesting aspect of those statistics is that there are only 8 cases (of 76 recorded) in the database where the offender was charged with only one offence. The statistics demonstrate a wide range of custodial sentences which reflect the diversity of the offending. About 40% of all sentences fall between 6 and 10 years. There are rare cases (about 15%) where non-custodial options have been adopted and, at the other end of spectrum, about 10% of offenders received sentences of 20 years to life imprisonment. Not too much can be gleaned from this rather superficial analysis, but it does confirm that the sentence I have in mind is in line with the sentencing patterns reflected in the statistics.
The sentence I propose is less than that imposed by the sentencing Judge. Accordingly, the appeal against sentence must be allowed. The interference with the proportion between the total sentence and non-parole period will not be as dramatic as that settled on by Judge Arnott SC because the sentence is substantially less and, ultimately, the non-parole period must also reflect the seriousness of the offending.
I would impose a sentence of 8 years with a non-parole period of 5 years and 3 months. That sentence would be back-dated to the date Mr Bhatia was taken into custody.

Orders

I would make the following orders: 1. Grant leave to appeal against the conviction. 2. Dismiss the appeal against conviction. 3. Grant leave to appeal against the sentence. 4. Allow the appeal against sentence. 5. Quash the sentence imposed in the District Court on 3 September 2021 and in lieu thereof, the applicant is sentenced to a non-parole period of 5 years and 3 months commencing on 14 October 2019 and expiring on 13 January 2025 with an additional term (balance of parole) of 2 years and 9 months expiring on 13 October 2027. 6. The applicant will be eligible for release to parole at the expiration of the non-parole period.
N ADAMS J: I have had the advantage of reading the judgment of Hamill J in draft and agree with the orders proposed by his Honour for the reasons provided. I also agree with the additional reasons of Beech-Jones CJ at CL. With respect to the conviction appeal, I have reviewed the record of the trial and am satisfied that the verdicts on counts 1 and 2 are reconcilable in the way described by their Honours and that the verdict on count 2 is not unreasonable. As for the application for leave to appeal against sentence I agree with Hamill J that grounds 2 and 3 are not made out but I too would uphold ground 4 for the reasons provided. Again, I also agree with the additional reasons provided by Beech Jones CJ at CL in relation to ground 4.

Endnotes

In fact, the child used a foreign word which meant Uncle but I will avoid use of that word to maintain the child's anonymity.
Joint Investigation Response Team.
Crimes Act 1900 (NSW), s 61HA (as it existed in October 2019). The definition has been amended but not in a material way.
See, for example, Mackenzie v The Queen (1996) 190 CLR 348; [1996] HCA 35, Jones v The Queen (1997) 191 CLR 439; [1997] HCA 56, MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53, R v Markuleski (2001) 52 NSWLR 82; [2001] NSWCCA 290, R v TK (2009) 74 NSWLR 299 at 321-323; [2009] NSWCCA 151, Norris v The Queen [2007] NSWCCA 235; 176 A Crim R 42, Ganiji v R [2019] NSWCCA 208, Collins v R [2020] NSWCCA 198, Dadley v R [2021] NSWCCA 267, Booth v R [2022] NSWCCA 113 and Saunders v R [2022] NSWCCA 273.
MFA v The Queen (2002) 213 CLR 606 at 617; [2002] HCA 53; see also, more generally, Pell v The Queen (2020) 268 CLR 123 at 145; [2020] HCA 12.
Mackenzie v The Queen (1996) 190 CLR 348 at 367; [1996] HCA 35. See also R v TK (2009) 74 NSWLR 299 at 322-323; [2009] NSWCCA 151.
Examples include Jones v The Queen (1997) 191 CLR 439 at 453; [1997] HCA 56 and Dadley v R [2021] NSWCCA 267 at [89].
R v TK at 332.
Special leave to appeal was refused: TK v The Queen [2009] HCATrans 290.
Crimes Act, s 66A(1); Crimes (Sentencing Procedure) Act, Table to Division 1A.
Some of the exceptions were summarised in Decision restricted [2022] NSWCCA 24 at [234]-[242].
Crimes Amendment (Sexual Offences) Act 2008 (NSW).
New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 26 November 2008 at 11707.
Crimes (Sentencing Procedure) Act, s 21A(3)(e)-(f).
See for example, Crimes (Sentencing Procedure) Act, s 3A. 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: 10 February 2023

Sentencing Procedure Act 1999(NSW)

Crimes Amendment (Sexual Offences) Act 2008(NSW)

HEADNOTE [This headnote is not to be read as part of the judgment] On 14 October 2019 the applicant was charged with two counts of sexual intercourse with a child under the age of 10 years, contrary to s 66A(1) Crimes Act 1900 (NSW). The complainant, GS, was 6 at the time of the offence, with the offences occurring when the applicant was taking care of GS while his parents were at work. Following a re-trial in the District Court on 15 June 2021, the jury found the applicant not guilty on the first count and guilty on the second count. The applicant was sentenced by Arnott DCJ to a term of 10 years imprisonment with a non-parole period of 6 years. The applicant sought leave to appeal against both his conviction and sentence. The Court (per Hamill J at [17], Beech-Jones CJ at CL at [1] and N Adams J at [155]), dismissed the appeal against conviction, allowed the appeal against sentence and re-sentenced the applicant to 8 years imprisonment with a non-parole period of 5 years and 3 months. As to whether the guilty verdict for count 2 was unreasonable because (a) it was inconsistent with the not guilty verdict for count 1, and (b) it was unreasonable considering the evidence (ground 1): 1. The guilty verdict on count 2 was not inconsistent with the acquittal on count 1 and it was open to the jury to differentiate between the two allegations. The early and consistent complaints GS made in relation to count 2 allowed the jury to find the allegation proved beyond a reasonable doubt. With count 1 the complaint arose later, in GS's second JIRT interview, making the evidence for that count less persuasive. The jury was also entitled not to treat the forensic (DNA) evidence as sufficiently corroborative of count 1, because the results were not definitive to the presence of saliva and showed the DNA of at least three individuals. The jury correctly considered each count separately and applied the onus and standard of proof to the evidence relating to each count: [98]-[108] (Hamill J); [1]-[10] (Beech-Jones CJ at CL); [155] (N Adams J). 2. The guilty verdict on count 2 was not unreasonable and was supported by the evidence. The prosecution case on count 2 was strong, as the complaints that GS made for count 2 were spontaneous and consistent and his testimony for count 2 was graphic and compelling. The defence's explanation that he was dreaming about the events was unpersuasive and any asserted deficiencies in GS's evidence could be readily understood on the basis of GS's tender age: [92]-[97] (Hamill J); [11] (Beech-Jones CJ at CL); [155] (N Adams J). MFA v The Queen (2002) 213 CLR 606; Mackenzie v The Queen (1996) 190 CLR 348; M v The Queen (1994) 181 CLR 487; R v TK (2009) 74 NSWLR 299; [2009] NSWCCA 151, applied; Curran v R [2020] NSWCCA 171, distinguished. As to whether the sentencing judge had erred in finding that the applicant did have the complainant fellate him on an occasion before Saturday 5 October 2019 (ground 2): 3. The sentencing judge did not err in making this finding. Though there were inconsistencies in GS's evidence as to the number of times earlier acts happened, these inconsistencies were considered in the context of his age. Overall GS's evidence strongly suggested there was at least one earlier incident with the applicant and there was no doubt his Honour made this finding beyond a reasonable doubt. Furthermore, his Honour did not take this finding as an aggravating factor and only sentenced the applicant in respect of the offence of which he had been found guilty: [115]-[121] (Hamill J); [12] (Beech Jones CJ at CL); [155] (N Adams J). As to whether the sentencing judge failed to have regard to the applicants' conditions of protective custody "in a general sense" (ground 3): 4. The sentencing Judge did not disregard the conditions of custody or ignore the fact that the applicant was in protective custody. His Honour made specific reference to the restrictions arising from the COVID-19 pandemic, the applicant's isolation and lack of support while in custody and his health difficulties. This was reflected in his Honours substantial reduction to the non-parole period when considering these restrictions: [122]-[127] (Hamill J); [12] (Beech Jones CJ at CL); [155] (N Adams J). BR v R [2021] NSWCCA 279, distinguished; Zahab v R [2021] NSWCCA 7, referred to. As to whether the sentencing judge erred in finding the case fell within s 21A(5A) of the Crimes (Sentencing Procedure) Act 1999 (NSW) thereby depriving the applicant of a mitigating factor for consideration (ground 4): 5. The sentencing Judge erred in applying s 21A(5A) of the Crimes (Sentencing Procedure) Act 1999 (NSW). The sentencing Judge found that this case fell within the provision because the offender's good character and long-term relationship with the victim's family enabled him to have access to GS. However, where the offender is a family friend, evidence must go beyond the fact of that relationship, to suggest the commission of the offence was materially assisted by the offender's good character or reputation. In the present case, GS's father gave no evidence he had assessed the applicant's character or history. No other evidence suggested that the applicant actively used his good character or befriended the family to gain access to GS. Section 21A(5A) was not applicable: [128]-[148] (Hamill J); [13]-[15] (Beech-Jones CJ at CL); [155] (N Adams J). 6. For s 21A(5A) to be engaged, the Court must be satisfied of the relevant connection between the offender's good character or lack of conviction and them having access to the complainant. The prosecution has an evidential onus to point to evidence of the relevant connection and the Crown may seek to adduce evidence that engages s 21A(5A) at the sentence hearing: [14] (Beech-Jones CJ at CL); [155] (N Adams J). O'Brien v R [2013] NSWCCA 197, distinguished; AH v R [2015] NSWCCA 51, considered; R v Stoupe [2015] NSWCCA 175; Thomas v R [2019] NSWCCA 265; GG v R [2018] NSWCCA 280; R v Flax [2014] NSWDC 268; R v NC [2020] NSWDC 547; R v DSM [2021] NSWDC 283; R v Sanchez [2021] NSWDC 561; R v Duncan [2022] NSWDC 543 referred to.

The present appeal

In the present case, there was no communication from the jury, or other indicator outside of the evidence, that suggested that the jury was divided or may have reached the differing verdicts as a result of compromise.
In terms of Mr Moutasallem's extensive and helpful analysis of the evidence to support the submission that the verdict was unreasonable in a more general sense, my examination of the evidence leads me to conclude that the prosecution case was quite strong. In a case such as this, it is not unusual for the prosecution to rely almost entirely on the evidence of a single witness. While there was no "independent" evidence to support the child's testimony, his complaint (in respect of the second count) was spontaneous and consistent. Further, his descriptions of what happened were, as the Prosecutor submitted at trial, quite graphic and compelling. Assessing the matter at this distance, GS's indication and description of "gagging" was a somewhat unusual feature of the case and a believable description of the events.
The child made appropriate concessions when propositions were put to him in cross-examination. This included suggestions to the effect that he was unhappy being cared for by the applicant. However, he denied that this caused him to concoct a false account. The defence explanation for his knowledge of sexual matters was unpersuasive and the jury was entitled to reject the suggestion that his evidence arose from his dreaming about the events. There was no evidence to support this case theory.
While the applicant relied, quite properly, on some confusion in GS's evidence, I accept (generally) the respondent's written submission: "However, there was nothing confusing about the description of either the event the subject of count 2, or when that event took place. Again, one must keep in mind the age of the child at the time he gave his accounts and stress involved for him in having to be repeatedly questioned about these events."
Some reliance was placed on this Court's decision in Curran v R [2020] NSWCCA 171 but the cases are not analogous. In Curran v R, the critical feature was that the complainant had denied repeatedly and over many years the sexual act upon which counts 3 and 4 relied (fellatio). There was no similar feature in the present case.
I do not accept that the guilty verdict on count 2 was unreasonable or unable to be supported based on the asserted deficiencies in the evidence. Most of these are readily understood by reference to the tender age of the principal witness. As I have said, my assessment is that the case against the applicant on count 2 was quite strong.
The applicant's submission that the guilty verdict was unreasonable in the sense that it was factually inconsistent with the acquittal on count 1, or that the doubt experienced in relation to count 1 ought to have led to a doubt in relation to count 2, has more force. As I have said, this was the real focus of Mr Moutasallem's careful submissions.

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