1. The sentences imposed on each of the individual counts, the orders for cumulation, the total effective sentence and non-parole period, were each manifestly excessive where regard is had to:

a) The objective gravity of the offending.

b) The absence of criminal priors, or subsequent matters, for sexual offending.

c) The effect of delay on the applicant;

d) The application of Verdins limbs 5 and 6;

e) Subjective burden of imprisonment due to his concerns for the welfare of his wife, daughter and mother-in-law;

f) The application of the principle of totality.

2. The sentencing judge impermissibly fettered her sentencing discretion by having disproportionate regard to the standard sentence of four years on charges 1, 2 and 3 and/or engaging in prohibited two stage sentencing.

1. At the oral hearing of the matter, the applicant formally abandoned ground 2. This leaves only ground 1 to be determined (on sentence).
2. For convenience, we will refer to the 'trial judge' and 'sentencing judge' simply as the judge.

1. The application for leave to appeal was filed nearly 57 days out of time on 15 August 2025.
2. In support of the applicant's application for an extension of time, he relied upon an affidavit sworn by his solicitor on 15 August 2025. This explained that the delay was caused by time associated with receiving advice, obtaining funding for an appeal, and securing relevant materials from the trial court.
3. The respondent submitted that the reasons for the extension of time are unsatisfactory. The respondent points to the following: that applications were filed 57 days out of time; counsel for the application also appeared at the trial; the funding approval was granted on 23 June 2025; the documents were filed on 8 August 2025; and the appeals lack merit. The respondent submitted that the proposed extensions of time ought to be refused.
4. For the reasons which follow, we have concluded that the proposed grounds of appeal (on both conviction and sentence) are without merit. In these circumstances granting leave for an extension of time to bring the applications for leave to appeal would be futile.

1. The prosecution case was based upon the following alleged circumstances.
2. In the early hours of 3 July 2022, the applicant - who was 44 years old at the time - offended against the complainant, a 14-year-old girl. The applicant was convicted of four charges which arose out of a single event.
3. The applicant was known to the complainant as he was a 'friend of the family'. The complainant thought of the applicant as 'kind of an uncle'.[1] The applicant had been friends with the complainant's father (DB) for approximately 20 years and they referred to each other as brothers. The complainant's parents (DB and MW) both have cognitive impairments.
4. At the time of the offending, the applicant, his wife (RB) and daughter (AL) were temporary residents at the complainant's family home in St Albans (the 'St Albans house'). They were helping the complainant's family move into that property.
5. On the night of the offending, the applicant's daughter, who was 4 years old, was sleeping in the complainant's bedroom. The applicant entered the complainant's bedroom where both children were sleeping and got into the complainant's bed and lay next to her. The applicant kissed the complainant on the lips roughly (charge 1, sexual assault of a child under 16), put his hand inside the complainant's pyjama top and touched her breast (charge 2, sexual assault of a child under 16). The applicant then moved his hand down the complainant's stomach to just above her groin.
6. Whilst the applicant was touching the complainant, she felt frightened and could not move or react. The complainant pretended to be asleep and turned her body away from the applicant in an attempt to prevent him from touching her any further.
7. After the complainant turned her body away, her back was facing the applicant, the applicant began to 'dry hump' the complainant from behind over her pyjamas (charge 3, sexual assault of a child under 16).[2] Whilst engaged in this activity, the applicant whispered to her 'I want to make love' (charge 4, encouraging a child under the age of 16 to engage in or be involved in sexual activity).[3] The complainant thought that she was going to be raped.
8. The complainant rolled away from the applicant again and the applicant stopped the offending and left the room. The offending lasted for approximately 10 minutes.

The complaint's and the applicant's departure from the St Albans house

1. The applicant continued to stay at the house for several days after the offending.
2. According to the complainant, she made her first complaint to her mother (MW) and father (DB) on Tuesday, 5 July 2022, a few days after the offending. She said she was 'pretty sure' it was the day after the applicant and his family departed. Her father (DB) told her to go to the police.
3. According to the complainant's mother (MW), the initial complaint was made to her on Wednesday, 6 July 2022, where the complainant said that the applicant had touched her. She did not say much. The applicant and his family were still staying at the house at the time. The applicant and his family moved out that day and the complainant made a more expansive complaint to her (MW). DB was not present when these complaints were made. On MW's account, the complainant made a more expansive complaint to her and DB on Friday, 8 July 2022.
4. According to the complainant's father (DB), on the day that the applicant and his family moved out, MW told him about the complainant's allegation against the applicant. He told MW that they had to go to the police.
5. Over the weekend of 9 to 10 July 2022, the complainant and her mother (MW) visited the complainant's aunt. The complainant made a further complaint. Her aunt told her to call the police.
6. MW reported the matter to the police on Sunday, 10 July 2022. The complainant then spoke to the police and made a video statement two days later on Tuesday, 2 July 2022.

Ground 1: That the verdicts of guilty on all charges are unreasonable

1. The applicant submitted that the fundamental dispute in issue was the applicant's identity. He contended that the prosecution could not exclude the reasonable possibility that the offending was committed by someone other than the applicant. This is how the case was conducted at the trial below. It is substantially how ground 1 was framed and argued before us.
2. There were five limbs to the applicant's case.
3. First, the complainant's recognition of the applicant - which was fundamentally based upon recognising his voice - was inherently unreliable. The applicant said that there was, on the complainant's own account, an insufficient opportunity for her to identify the offender by his voice. The applicant pointed out that, on the complainant's account, she woke up to being assaulted. She never opened her eyes and did not see the offender. Whilst positioned behind her, the offender whispered 'I want to make love'. These were the only words spoken by the offender and they were, according to the complainant, spoken in a 'whisper'. The tenor of the applicant's case was that this evidence supplied an unsafe foundation for the applicant's conviction.
4. Second, the applicant submitted that the complainant's description of the applicant's facial hair had discrepancies and did not match his appearance. In particular, the applicant said that the complainant's description of the offender having a beard (that was at least not 'too short') was at odds with the evidence of the complainant's mother (MW) that the applicant had 'little bit of moustache there and [was] all shaved.' The complainant's purported descriptions of the applicant described someone other than the applicant.
5. Third, the applicant submitted that the prosecution could not exclude the reasonable possibility that the applicant was not present in the St Albans house at the time of the offending. The applicant relied upon two pieces of evidence: evidence from the complainant's father DB, and evidence of what the applicant asserted in his ROI.
6. The applicant contended that the effect of the VARE evidence of the complainant's father (DB) was that the applicant stayed at the St Albans house, 'except for the weekend' when he would go back to Diggers Rest (where the applicant lived). As this offending took place in the early hours of Sunday morning (ie, over a weekend), the prosecution had not excluded the hypothesis that the applicant was not staying at the St Albans house at this time. The applicant contended that this hypothesis gained further support from some answers which the applicant gave in his ROI with police where at one point he said 'I wasn't even there over the weekends'.
7. It became clear during the oral argument that the applicant's point was not that the evidence affirmatively placed him at Diggers Rest on the relevant weekend; rather, the evidence as to his presence at the St Albans house was in such a state of ambiguity that it should have raised a reasonable doubt.
8. Fourth, the applicant submitted that a third party intruder could have committed the offence. This hypothesis was not, said the applicant, excluded by the prosecution. This hypothesis was based upon two parcels of evidence.
9. The applicant relied upon the evidence of the complainant's father (DB) that on the night of the alleged offending, he had not checked that the front door or the windows of the house were locked. This included the window of the bedroom where the complainant was sleeping. Locking the doors and windows was ordinarily DB's responsibility, but he had gone to bed early because he was sick.
10. Reliance was also placed upon the evidence of the complainant that a couple of months after the incident she found her bedroom window open when she came home, when it had been closed before leaving the house. This was then fixed with a deadlock.
11. It was contended that the weaknesses in the identification evidence implicating the applicant as the assailant - including the discrepancies about his facial hair and the limited opportunity for the complainant to identify the assailant by his voice - gave strength to the hypothesis that it was a third party intruder who had committed the offence. We apprehend the applicant to have argued that the weaker the state of the identification evidence, the more plausible the third party intruder hypothesis becomes. This was particularly so, the applicant argued, in circumstances where there was evidence that the house was not properly secured.
12. Fifth, the applicant pointed to answers given by the complainant in her VARE, where the complainant said that the events were 'like a dream, but it wasn't'. The applicant initially contended in his written case (as he did at trial) that there was a reasonable possibility that the complainant had dreamt this entire episode up.
13. At the oral hearing of this application, the applicant walked back this contention. Rather than suggesting that the dream answer - taken alone - raised an obstacle to conviction, the applicant relied upon this as a further strand of evidence which diminished the quality of the identification evidence that the applicant was the assailant. This in turn, or so the argument went, gave further force to the hypothesis that the offending may have been committed by a third party intruder.
14. We will set out the relevant evidence, and expand upon the applicant's arguments, below in our analysis.

1. The respondent submitted that it was well open to the jury to be satisfied that the applicant was staying at the complainant's family home at the relevant time and that he was the offender.
2. The complainant said that she recognised the voice of the applicant during the offending.
3. This voice identification evidence was supported, the respondent contended, by circumstantial evidence that could be used by the jury namely:

(a) There was evidence from the complainant and her parents that the applicant was staying at the house at the time of the offending.

(b) The applicant also admitted to staying at the complainant's family home.

(c) The complainant said she could smell alcohol and cigarettes on the assailant's breath. There was evidence that the applicant drank beers and smoked cigarettes (and was the only person who smoked) at the St Albans house.

(d) The complainant said she could feel his beard on her face. Her description of the applicant's facial hair was not inconsistent with MW's evidence that the applicant had a moustache or with his appearance during the applicant's ROI (when he had a moustache and goatee).

1. The respondent submitted that it was well open for the jury to be satisfied that the applicant was residing at the family home in St Albans at the relevant time. The respondent contended that the evidence of the complainant, her mother (MW) and her father (DB) all place the applicant in the house at the relevant time. Further, the respondent said that the applicant, by his admissions in the ROI, places himself in the house at this time.
2. The respondent also submitted that it was open to the jury to reject the hypothesis that there was an unknown intruder who abused the complainant and ignored the other child. The respondent submitted that it was fanciful that an unknown intruder did not wake any of the other adults. There was also no evidence that the complainant's bedroom window or the front door of the house were open on the night of the offending.
3. The respondent submitted that the possibility of the offending being a dream was explored in the special hearing, and was clearly and compellingly rejected by the complainant.
4. Ultimately, the respondent contended that there were no significant discrepancies or inconsistencies in the complainant's account and no apparent embellishment at all. It was clearly open to the jury to accept her account as truthful and reliable (which the court must assume under this ground) and convict the applicant. The respondent argued that the ground lacked merit and leave must be refused.

1. Under s 276(1)(a) of the Criminal Procedure Act 2009 this Court must allow an appeal against conviction if satisfied that 'the verdict of the jury is unreasonable or cannot be supported having regard to the evidence'. In applying this section, the Court is required to ask itself whether it thinks that upon the whole of the evidence it was 'open to the jury to be satisfied beyond reasonable doubt that the accused was guilty'.[4] The Court must make its own independent assessment of whether, on the evidence as a whole, there was a reasonable doubt as to the guilt of the applicant.[5]
2. In a case such as the present one, the Court must proceed on the assumption that the evidence of the complainant was assessed by the jury to be credible and reliable but examine the record of the evidence to see whether, notwithstanding that assessment, the jury acting rationally ought nonetheless to have entertained a reasonable doubt as to the proof of guilt.[6]
3. If the evidence

upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person had been convicted, then the court is bound to act and to set aside a verdict based upon that evidence.[7]

1. In seeking to highlight the weaknesses of this recognition evidence, the applicant seized upon the brevity of the phrase uttered, the fact that the words were spoken in a 'whisper' (which implies the words were spoken quietly and softly) and that she had never heard the applicant 'whisper' before. The applicant essentially said this provided an inadequate opportunity for the complainant to make a safe and reliable recognition.
2. We do not agree. It may be accepted that the opportunity for recognition was, on one view, limited. In our view, however, it was more substantial than the applicant suggests.
3. The complainant significantly qualified her 'whispering' description when she said that the voice was 'deep and husky' and that he was 'talking in a deep voice'. This description bespeaks of more depth in the voice than a mere whisper. Her account of the voice suggests that she was in a position to perceive the distinctive characteristics of the voice. Plainly, the offender specifically directed the words at the complainant with purpose. They were intended by him to be audible and comprehensible to her. This also occurred in the dead of the night when it can be assumed there was little by way of background noise. The complainant's description suggests that the offender's words, and his voice, were etched in her memory. We think that words spoken - in these intense circumstances - would be less prone to misidentification than, say, an innocuous unfocused or passing whisper.
4. The applicant was also well known to the complainant. The complainant consistently described her relationship with the applicant as one where he was 'like an uncle' to her and that she had known him for approximately two years. She said she had heard his voice 'many times' over those two years. The applicant had been staying in the St Albans house for at least two weeks. Their contact had thus been ongoing and recent. In our view, the degree of their familiarity also reduced the risk of mistaken recognition.
5. The applicant's attack upon the voice recognition evidence also overlooks the body of circumstantial evidence which supports the recognition. The voice recognition evidence gains significant support from a number of sources.
6. First, there was a body of evidence which placed the applicant in the St Albans house that night. Once that is accepted - and we think the jury was entitled to accept it[8] - this means there were only two men in the St Albans house that night: the complainant's father (DB) and the applicant. They were the only males from within the house who had the opportunity to commit this assault. There has never been any suggestion that the complainant's father (DB) was the offender. The applicant was thus the only male from within the house who could have committed this offence, and this is the very man who the complainant recognised as the offender.
7. Second, the complainant's reaction (or lack of it) after the offending was only consistent with a conclusion that she believed that the offender was known to her - and thus not an unknown intruder - and moreover that it was the applicant:

(a) She said that she was in tears afterwards because she thought she had done something to make the offender do what he did to her. She was upset at herself and at him. These emotions speak of a personal and familiar relationship with the offender.

(b) The complainant raised no alarm about there being an unknown third party intruder in the house.

(c) Over the nights subsequent to the alleged offending, the complainant used her phone's audio recording device to record activity in her room in case the applicant entered her room again. She gave the police those recordings.[9]

(d) The complainant made several complaints shortly after the offending. These complaints were substantially consistent. Significantly, in every account she said that the assailant was known to her and that it was the applicant.

(e) She explained that she did not tell her mother until after the applicant and his family had moved out of the St Albans home because she was scared. Although her mother (MW) says that the complainant made the first complaint on the Wednesday shortly before the applicant and his family moved out, this complaint was brief; once the applicant and his family had moved out on that day, the complainant made a detailed complaint to her (MW).

1. This was powerful objective, consistent and contemporaneous evidence of the complainant's unwavering conviction that the offender was known to her - and not an unknown intruder - and that it was the applicant who was staying in her house.
2. Third, the recognition evidence drew further support from the complainant's evidence in relation to the offender's facial hair (the applicant had facial hair),[10] the fact that the offender smelt of alcohol (the applicant was a person prone to drinking alcohol including at the St Albans house) and the fact that the offender smelt of cigarettes (the applicant was a smoker). Taken alone, these pieces of evidence carried modest weight. But, taken in combination, these additional features added strength to her recognition evidence, and reduced the possibility of misidentification.
3. It was never suggested that the complainant had tailored these features to support her recognition, although the point was made by the defence that the complainant did not refer to the smell of cigarette smoke in her VARE. When cross-examined about whether she was creating this particular detail, the complainant gave an explanation that her memory was triggered when she smelt her support worker smoking - 'I realised that it happened'. The jury was entitled to accept this as a tenable explanation.
4. In our view, the complainant's recognition evidence - when considered with the totality of the evidence in this case - was cogent.

1. The applicant contended that the complainant's description of the facial hair of the offender was at odds with the state of the applicant's facial hair at the relevant time.
2. In order to address this point, it is first necessary to set out the evidence.
3. The complainant in her VARE said she could feel 'his beard touching my face'; it would 'prickle against my chin'.
4. When cross-examined about this by defence counsel, the complainant gave the following answers:

You've spoken about the beard that this man had?---Yes.

Can you give us any further details about that beard?---Um when he kissed me, I could feel it, like, his, like, beard hair prickle me um, and that's about it.

You didn't see the beard, because you couldn't see---?---No. --- the accused?---Yes.

And when you say you feel the beard, was that when the man was kissing you on your face?---Yes.

And so far as that beard is concerned, you can't give us any other detail about it?---Yes, that's correct.

Whether it was a full beard, part of a beard, or anything like that?---It wasn't long.

Any other details?---I think maybe it, like, wasn't too long, but it wasn't too short either.

But it was on - when we talk about this beard, it was covering his face?---Yes.

And you could feel that?---Yes.

1. In re-examination, the complainant gave this evidence:

Now, going back to that night during the incident in your room, were you able to feel how long that beard was?---No, I wasn't.

Can you say anything more about the beard in terms of how it felt, apart from it feeling prickly?---No, I can't.

1. As for the evidence concerning the state of the applicant's facial hair at this time - as distinct from the complainant's observations of the offender - this came from two sources, the complainant and her mother MW:

(a) In re-examination, when asked to describe the applicant's facial hair, the complainant said 'it was prickly, it was grey and wasn't too long but wasn't too short, either'.

(b) MW in her VARE said that the last she knew the applicant had a 'little bit of moustache there and all shaved.'

1. The applicant places much store in the complainant's evidence to the effect that facial hair covered the face of the assailant (italicised above). The applicant said that this simply cannot sit with the evidence of MW that - but for his moustache - the applicant was clean shaven. This conflict, the applicant said, irremediably undermines the complainant's recognition evidence.
2. We think there are a number of overlapping answers to this contention.
3. First, the complainant's facial hair evidence substantially corresponded with the evidence of the applicant's appearance. The import of the complainant's evidence was that the assailant had some facial hair and was not clean shaven. The fact is, the applicant had some facial hair and was not clean shaven. That was so, whether the applicant had a moustache only, a short or long beard, and whether he had facial hair covering the whole of his face or just part of it.
4. Second, any lack of exactitude in alignment between the complainant's description of the assailant's facial hair, and the state of the applicant's facial hair, can be explained by the fact that the complainant's account was based upon what she could feel, not see. The complainant's eyes were closed. Further, the complainant's answer that facial hair covered the face of the assailant was qualified by her later evidence in re-examination (reproduced above) that she was unable 'to feel how long that beard was' and that she could not say anything more about the beard apart from it feeling prickly.
5. Third, the applicant's arguments tend to overstate the importance of the facial hair evidence within the context of the totality of the evidence of recognition. The complainant's recognition of the applicant fundamentally rested upon her recognition of his voice. The facial hair evidence - like her evidence that he smelt of alcohol and cigarette smoke - provided some support for that recognition. But, on her account, this evidence was not central to her recognition of the applicant. Her recognition of the applicant rested largely upon her recognition of his voice. When viewing the evidence holistically, it was open to the jury to consider that the imperfections or inadequacies in the facial hair evidence were of little moment, and did not raise a mistaken recognition.

Hypothesis that the applicant was not present in the St Albans house

1. The applicant contended that the evidence raised a hypothesis that he was not present at the St Albans house over the weekend of 2 to 3 July 2022, but had returned to his own house in Diggers Rest. He therefore could not have committed the offence.
2. It is helpful to first identify what is not in dispute.
3. It is common ground that the import of the complainant's evidence was that the alleged offending occurred in the early hours of Sunday, 3 July 2022. In her VARE - conducted on Tuesday, 12 July 2022 - she said that the offending occurred 'not this Sunday but the Sunday before'. This makes it Sunday, 3 July 2022.
4. While there was some variation in the evidence concerning the period of time over which the applicant and his family were staying at the St Albans house, the weight of the evidence was that their stay commenced from somewhere in mid to late June 2022 and they moved out on Wednesday, 6 July 2022.[11] It was therefore accepted that the parameters of the stay encompassed the weekend of 2 to 3 July 2022.
5. The critical controversy was whether the applicant had returned to stay at his own home - at Diggers Rest - over the weekend of 2 to 3 July 2022 (when this offending occurred).
6. There are two pillars to the applicant's argument. The first was based upon the evidence of the complainant's father (DB), and the second was based upon some answers which the applicant gave in his ROI.
7. Turning first to the evidence of the complainant's father (DB). In his VARE with police, DB gave the following answers:

So but when they were staying at your house you were sleeping in the same room as [MW]?---Yeah

And [MW] gave her bedroom to [the applicant] and [RB] to sleep?---Pretty much

OK---Except for the weekend.

In cross-examination the following exchange occurred:

What I wanted to ask you about was what you meant by 'Except for the weekend?---Weekend (indistinct) don't you go back new place

He went back to Diggers Rest, is that---?---yes

And so---?---(indistinct) a break?

1. A break was taken. Significantly, upon resumption this line of cross-examination was not pursued.
2. The applicant says that DB's evidence supports the hypothesis that the applicant was in Diggers Rest over the weekend of 2 to 3 July 2022.
3. We make these observations concerning DB's evidence.
4. In our view, it is not clear what DB intended to convey by the answer 'except for the weekend' in his VARE or by his agreement in cross-examination that the applicant went back to Diggers Rest. Counsel for the applicant at the oral hearing before us accepted that the evidence was left in 'a state of ambiguity'.
5. The cross-examination of DB was not specifically directed at the weekend of 2 to 3 July 2022. Importantly, it was never put to DB that the applicant was not present at the St Albans house that weekend (ie, on the weekend when it is alleged the offending occurred). There was no attempt in the cross-examination to clarify whether the applicant would return to Diggers Rest every weekend (during the period when they were staying at the St Albans house) or whether he would return to Diggers Rest for the whole of each weekend.
6. In our view, the contention that, by these answers, DB was intending to convey that the applicant was not present in the house conflicts with the overall tenor of DB's evidence. While not free from some uncertainty, the tenor of DB's evidence is that the applicant was present in the house at the time the alleged offending occurred.
7. It may be accepted that DB experienced some difficulty in recounting the events in question by reference to a coherent timeline. This is likely explained by DB's intellectual disability in conjunction with the delay which occurred before he made his VARE (five months). At times in his VARE, he seems to have (wrongly) conflated the day the alleged offending occurred (which objectively was the weekend of 2 to 3 July 2022), with the day he learned of the allegations (which objectively seems to be Wednesday, 6 July 2022). Sometimes it is difficult to discern in the VARE whether DB is recounting the state of affairs which existed on the day the alleged offending occurred or the state of affairs which existed on the day when the allegations were conveyed to him by MW.
8. Even so, DB associated the occasion of the sexual assault with a weekend. Following is the initial exchange in his VARE:

Tell me what you've come here to talk to me about today. About [the complainant] being touched. Tell me about that?

That - that weekend, I was sick in bed. When - when the coppers come, coppers told [the applicant] and his partner had to leave. When they leave, [the complainant] told her mother. Then her mother come get me out of bed. [The complainant] told me. I said, 'You have to go to the coppers, cause of being touched'.[12]

1. Further, later in the VARE there was this exchange:

There's a few things that I just want to ask you. you're talking. So on that particular night that about when you say [the complainant] got touched, who was at the house?---It was me. I was in bed, sick. [the complainant], [MW] told me. RB,[13] [the applicant], and AL.[14]

Was there anyone at the house on that night? No.

1. DB also said that when he learned of the allegations against the applicant from MW, he implored MW that they had to go to the police. This is supported by the complainant. On any view, DB said this in the days immediately following the weekend of 2 to 3 July 2022. The jury may well have viewed his urgings that the applicant be reported to the police for assaulting his daughter over that preceding weekend was incompatible with DB holding an understanding that the applicant was at Diggers Rest and not present. It was open to the jury to view the interpretation which the defence sought to place upon DB's answer 'except for the weekend' as being out of step with his conduct and with the overall tenor of DB's account. In the circumstances, and while accepting that DB's evidence suffered from some weaknesses, DB's evidence supplied some support for the proposition that the applicant was present at the time the alleged offending occurred. His evidence certainly did not stand in the way of a conviction.
2. We turn now to the answers which the applicant he gave in his ROI (relied upon by the applicant):

Did AL[15] sleep with [the complainant]?---I've got no idea on that.

Did you ever see AL with [the complainant] in one of the rooms?---I seen her in the lounge room and that, playing, but that was me just walking past, so, like, I dunno if she was asleep with ... or I dunno, I wasn't

So that - they're playing, you said, during the day, you were - or at night-time?---Nuh, night-time, like, when I come home from work, they'd be there.

Mm'hm?---'Cause I wasn't even there over the weekends, I was too busy helping 'em move.

Right?---'Cause they had three storage places that I had to go to, so

1. The applicant fastened upon the emphasised words in the above passage. At the oral hearing of this matter, the applicant's counsel argued that by his answer - 'cause I wasn't even there over the weekends' - the applicant was seeking to convey that he did not stay at the St Albans house on weekends. This appears to have been the high point of the applicant's case that he was not present.
2. We do not read the ROI evidence in this way. In our view, the applicant was saying no more than that he was so busy on weekends helping with the move into the St Albans house, he had no real opportunity to observe what the children were doing at the house. Significantly, he was asserting that he was in Melbourne, not in Diggers Rest. These answers offered no support whatever for the hypothesis that he had returned to Diggers Rest on the weekend of 2 to 3 July 2022.
3. MW's evidence also stood in the way of the hypothesis that the applicant was not present at the St Albans house on that weekend (but was at Diggers Rest).
4. Even though MW did not recall the dates, the clear import of her evidence was that the applicant stayed over at the St Albans house on the Saturday night when the complainant alleged this sexual assault occurred.
5. MW recalled the complainant making a complaint to her on the Wednesday following the weekend of the assault. MW recounted that the allegation made by the complainant was that the assault occurred the preceding weekend, as confirmed in the following exchange:

Earlier you told me that - you mentioned a Saturday and Sunday.---Yeah it was Saturday. I didn't go to bed till after 12:30.

Why did you say Saturday what makes you think it was a Saturday or a Sunday?---Cause [the complainant], cause [the complainant], cause [the complainant] told me.

OK [the complainant] told you what?---What [the applicant], what [the applicant] did.

1. MW then gave a detailed account about what she was doing that Saturday night and who was present before she went to bed. She specifically recalled the applicant and RB were in the back room while she (MW) was watching a DVD in the lounge room. She then said of the applicant:

... he come up and said - said goodnight - and kissed me on the cheek when he was in his jocks and a skivvy.

1. The essence of MW's evidence was that she did not see the applicant going into the complainant's bedroom. But there was never any doubt in her evidence about the applicant's presence in the house that night.
2. It was not put to MW that the applicant was not staying at the St Albans house that weekend. MW's evidence that the applicant was present in the house that night effectively went unchallenged. It was well open to the jury to view her evidence - on this point of his presence - as being fundamentally reliable.
3. Finally, this hypothesis must also be assessed within the context of the complainant's unequivocal and consistent account that the applicant was staying at the house at the actual time of the offending. When assessing this evidence, it would have been apparent to the jury that it was never put to the complainant that the applicant was not staying at the St Albans house on this weekend. Not only was she not challenged on this issue, the following exchanges took place during her cross-examination:

And so the moving of your property and your possessions from storage into the new house, tended to happen in the evening, early evening?---Yes.

And did that occur over a number of days?---Yes.

....

Did the accused also do that on the weekend? That is, help move your property, and your mum and dad's property, into [St Albans house]?---Yes.

Did anyone assist him with that?---His partner and my dad.

So your dad was helping or assisting him?---Yeah. Yes.

1. And later immediately following on from some questions about her recognition of the applicant's voice:

Did you assume that it was the accused because he was staying at your house at that time?---No.

1. This questioning implied that it was not in issue that the applicant was staying at the St Albans house over weekends (including the weekend of 2 to 3 July 2022). Indeed, a central pillar of the defence case was that his presence at that time supplied the reason for her mistaken recognition - this caused her to mistakenly assume the applicant was the offender.
2. Lest there be any doubt about this, the following defence submission was made in the final address:

... there's a risk that [the complainant] may have assumed that it was [the applicant] because he was in the house at the time, apparently, that she might've assumed that it was him.[16]

1. The conduct of the defence case that the applicant was not present in the house on that weekend - but was at Diggers Rest - was advanced with some timidity. Having referred to the relevant portions of DB's evidence and the applicant's ROI (both reproduced above), defence counsel submitted to the jury that the applicant 'may not' have been there on the weekend at the precise time these offences are alleged to have occurred, and that this had not been properly investigated. This tentativeness reflected the absence or paucity of evidence of his presence in Diggers Rest or anywhere other than at the St Albans house. It is also explained by the fact that the argument conflicted with the more central defence - assumed identification - which rested upon his presence in the house.
2. In conclusion, the evidence in support of the hypothesis - that the applicant had returned to Diggers Rest over the relevant weekend, and was thus not present at the St Albans house - was speculative. Against this, the jury had available to it a convincing body of evidence that the applicant was staying in the St Albans house over that relevant weekend. It was comfortably open to the jury to dismiss the hypothesis.
3. Finally, at the oral hearing before us the applicant argued that the prosecution should have made an application under s 38 of the Evidence Act 2008 to cross-examine DB about his ambiguous answers concerning Diggers Rest and the weekends. In our view, this argument has no substance.
4. First, the impugned answers - when read in the context of the whole of DB's evidence - did not contradict the prosecution case or detract from it. They did not stand in the way of the pathway to conviction. They were so ambiguous that they were not 'unfavourable' within the meaning of s 38. The prosecutor in the trial did not criticise the evidence of DB in his final address. Without traducing the evidence of DB, the prosecutor submitted that this evidence simply did not raise the realistic possibility that the applicant was not present the night of 2 to 3 July 2022. It was a legitimate submission to make. This is not a case where the prosecutor has attacked the reliability or credibility of the evidence of its own witness because it was considered to be unfavourable, without having sought leave to cross-examine the witness pursuant to s 38 of the Evidence Act 2008.[17]
5. Second, the defence made a calculated forensic decision not to confront DB head on about the Diggers Rest issue. The strategy of the defence was to leave the issue in a state of ambiguity rather than press for clarity.
6. We think they adopted this course in part because the Diggers Rest hypothesis contradicted an important leg to the defence case - that the complainant assumed the assailant was the applicant because he was in the house at the time - which was underscored in both the cross-examination of the complainant and in the final address.
7. There was also a risk with pressing for clarity. Had they directly confronted DB, he may well have disputed that the applicant was not present. As we have said, the tenor of the balance of his evidence is that the applicant was present. Challenging DB would also still have left undiminished the force of the evidence of the complainant and MW on this issue. Also, a view may well have been taken that the jury was always going to approach any concessions made by DB with some caution.
8. It seems to us that the defence made a calculated decision to float the Diggers Rest hypothesis as a mere possibility without ever really committing to it with conviction. In those circumstances, it is unsurprising that the defence at trial did not make the submission or complaint - now made on appeal - that the prosecution should have sought to cross-examine DB under s 38 of the Evidence Act 2008. That would have cut across their apparent stratagem to deal with this issue obliquely, with a view to throwing up mere uncertainty about the applicant's presence at the St Albans house. The applicant is bound by the informed and deliberate forensic choices made on his behalf at trial.[18]

1. There is also no substance to the third party intruder hypothesis.
2. We say that for two reasons.
3. First, as already explained,[19] the jury was entitled to accept the complainant's recognition evidence upon the basis that the applicant was present in the house that night. This evidence - if accepted - excluded the third party intruder hypothesis. Without wanting to belabour the point, the complainant recognised the applicant as the offender as someone well known to her. She never suggested that the offender was an unknown intruder. The jury was entitled to accept her account.
4. Second, the third party intruder hypothesis was otherwise very speculative. The high point of the applicant's case in this respect was that the front door, and perhaps the complainant's bedroom window, had been left open on the night of 2 to 3 July 2022. Yet there was not a skerrick of evidence that a third party intruder actually entered the house that night, whether through the bedroom window, the front door, or by any other means.
5. To the extent that the applicant seeks some support for this hypothesis from the complainant's evidence that there were security concerns about the complainant's bedroom window, this cannot take the applicant very far. That is because the complainant was clear in her evidence that these concerns arose 'a couple of months after the incident'. Again, reliance upon this evidence simply invited conjecture.
6. In our view, the jury must have seen the third party intruder hypothesis for what it was - a red herring.

1. At the oral hearing of this application, the applicant all but abandoned the 'figment of a dream' point. Nevertheless, as the applicant still seeks to draw some comfort from this point, it remains necessary for us to say something about it.
2. In her VARE the complainant said:

I didn't know, like, he would - could do something like that to me, 'cause he was like an uncle to me and pretty much old enough to be my father, and I was scared that he actually done that to me. It was like a dream, but it wasn't.

1. When asked in cross-examination about why she thought it was like a dream, the complainant answered:

because you don't expect your uncle figure to touch you like that.

1. This evidence could only offer the defence case any succour if it raised the possibility that the complainant had dreamt up or fantasised this assault. In our view, it clearly did not raise such a possibility. It is plain that the complainant never intended to convey that her account was a figment of a dream, rather than a recounting of a real event. So much is clear by her phrase 'it was like a dream but it wasn't'. It seems to us that her reference to it being 'like a dream' was intended to convey her utter bewilderment that someone in the applicant's position - an adult family friend who was a guest in their house - would come into her bedroom in the middle of the night and sexually assault her.

1. The defence points raised before us were all litigated before the jury. The jury must have rejected each of them, which they were entitled to do. The jury did so after having been properly instructed by the judge (no complaint was made about the directions). This included a direction on the potential unreliability of identification or recognition evidence. No exception was taken at trial to this direction, and no criticism was made about it before us.
2. In our view, none of these matters - whether alone or in combination - obliged the jury to entertain a reasonable doubt. Put another way, the jury must be taken to have accepted the credibility and reliability of the complainant. There was nothing in the evidence - alone or in combination - which should have displaced their acceptance - beyond reasonable doubt - of her account. As we have sought to demonstrate, when the evidence was taken as a whole, it made for a convincing case that the applicant was the offender. We do not experience a reasonable doubt about the applicant's guilt.

1. Leave for an extension of time to bring the application for leave to appeal against conviction is refused.

Ground 1: The sentences imposed on each of the individual counts, the orders for cumulation, the total effective sentence and non-parole period, were each manifestly excessive.****[20]

1. The judge found that the applicant's offending was 'grave' noting:

(a) The offending was a 'gross betrayal' of the trust of the complainant and her parents. The applicant was a guest in the complainant's home. The complainant's parents were vulnerable by reason of their cognitive impairments, and the applicant knew this.[21]

(b) The applicant was 'a long-standing trusted friend of the family'[22] who occupied the position of uncle to the complainant.

(c) The complainant - a 14-year-old asleep in her own bedroom in the middle of the night - was 'completely vulnerable.'[23]

(d) The offending was a 'gross transgression' of the complainant's right to privacy and safety in her home.[24]

1. The judge then examined, in some detail, the significant impact the offending had upon the complainant (and her parents).[25]
2. A specific finding of the applicant's moral culpability was not made. However, the judge said that she was required to adequately punish the applicant for what he did and must publicly denounce his conduct describing it as 'entirely unacceptable'.[26] By reference to the gravity of the applicant's conduct, the judge stated that it was a necessity that the applicant serve as an example to others 'about what will happen to a person who behaves this way.'[27]
3. The judge then turned to consider the mitigatory factors for the applicant.
4. The judge observed that the applicant had no prior convictions for any sexual offence. However, the judge went onto to note that he had prior convictions for other forms of offending. She described them as 'generally minor' (criminal damage, offences of dishonesty), although there was more serious offending (reckless conduct endangering serious injury, careless driving and exceeding the prescribed limit).[28] The applicant had served one previous sentence of imprisonment and one suspended sentence of imprisonment.
5. There was a nearly three-year delay between the offending and sentence. The judge said that she had taken into account that the applicant had not offended during that period, as well as the fact that he 'had this matter hanging over [his] head throughout that time' and that he had spent 'much of that time in anxious anticipation'.[29]
6. A psychological report prepared by psychologist, Ms Andrea McNeil, was tendered on plea. In this regard, the judge observed Ms McNeil's concerns that the applicant appeared to have engaged in 'impression management' raising the possibility that some of the testing was of 'questionable validity'. The judge noted that in the report the applicant continued to deny and avoid responsibility for the offences he committed.
7. Despite holding some reservations about the validity of some aspects to the report, the judge accepted Ms McNeil's opinion that the applicant suffers from an alcohol use disorder, an underlying adjustment disorder with mixed anxiety and depression, and exhibits traits of Borderline Personality Disorder. The judge accepted that the applicant's conditions 'may cause [his] imprisonment to weigh more heavily upon [him] than on a person not so afflicted' and that 'these conditions may deteriorate in the custodial environment'. The judge then applied limbs 5 and 6 of Verdins in mitigation of the applicant's sentence. The judge also accepted that the burden of imprisonment on the applicant would be increased as he will worry about his two dependants, being his mother-in-law and partner, who suffer from a range of medical conditions.
8. Ultimately, the judge found that in light of the information before her it was 'difficult to conclude anything other than [the applicant's] prospects for rehabilitation are perhaps less than bright.'
9. The judge further said that the need for denunciation and the need for general and specific deterrence loomed large in this sentencing process. She noted that protection of the community was a primary consideration having regard to the application of the serious sexual offender provisions to charges 3 and 4.
10. In applying the principle of totality, the judge found that because the four charges arose from one occasion 'there is considerable overlap between these charges and Charges 3 and 4 in particular.'
11. Finally, when discussing her various considerations, the judge said she had regard to the standard sentence for charges 1, 2 and 3 along with the comparable cases and sentencing practices to the extent that they applied.

1. The applicant submitted that the sentences are manifestly excessive.
2. In his written case, the applicant advanced a number of specific complaints about the way in which the judge had approached some of the sentencing considerations in her reasons. At the oral hearing of this application, counsel for the applicant abandoned these specific points. For example, in his written case, the applicant quibbled with the judge's characterisation of the offending as 'grave', where at the oral hearing he accepted that this description was apt. Moreover, contrary to the written case, at the oral hearing the applicant conceded that the sentencing reasons were 'impeccable'.
3. The applicant maintained, however, the central contention that - despite the judge considering all of the relevant sentencing considerations - the sentences imposed fell outside the available range.
4. The applicant argued that the offending does not fall at the 'upper end of the spectrum', emphasising that:

(a) Kissing the complainant on the mouth, grabbing her bare breast, and 'dry humping'[30] her from behind, was 'not the most serious' kind of this offending because 'none of it involved touching of her vagina or genital region'.

(b) There was an absence of evidence of 'predation' and 'grooming'.

(c) The offending was 'not protracted' as it occurred only over 10 minutes.

(d) It was isolated offending.

(e) There was no premeditation.

1. In relation to the conduct the subject of charge 4 - encouraging a child under 16 to engage in or be involved in sexual activity - the applicant submitted that uttering the phrase 'I want to make love' was isolated, was not in the form of a demand, and did not have 'the effect of encouraging the complainant'.

1. The respondent submitted that the sentences imposed on the applicant were modest. Indeed they could, the respondent said, be described as 'lenient'. Certainly, it cannot be said that they fell wholly outside the reasonable exercise of the judge's sentencing discretion.
2. The respondent submitted that the offending was appropriately characterised as 'grave' because the applicant was a mature middle-aged man, a family friend, staying at the complainant's family home, entered the room of a sleeping child and offended against her sexually for 10 minutes.
3. The fact that there was an absence of grooming - which could amount to a separate charge if established - does not lessen the gravity of the offending.
4. The words 'I want to make love to you' were frightening to the complainant and indicated his intent and was relevant to the complainant's belief that she was going to be raped.
5. The respondent submitted that the judge appropriately considered delay, limbs 5 and 6 of Verdins and the principle of totality.

1. The ground of manifest excess will only succeed if an applicant demonstrates that the sentences were wholly outside the range of sentencing options available to the judge. In other words, it must be shown that the sentencing conclusion reached by the judge was not reasonably open, if proper weight had been given to all the relevant circumstances. As has been said many times, this is a stringent test and is difficult to satisfy.[31]
2. In our view, for the reasons given by the judge, the judge was quite right to characterise the applicant's offending as 'grave'.[32] This was a gross breach of trust against the complainant and her parents, where the applicant exploited the vulnerability of the entire family.
3. At the oral hearing, the respondent spent some time highlighting aggravating features said not to be present in this offending (eg, grooming, touching of the vaginal area, premeditation, prolonged offending). These were used to support the submission that this offending does not fall at the upper end of the spectrum of gravity. This was not a persuasive submission. Although there may be cases where highlighting the absent aggravating features can be useful,[33] this was not such a case. What really matters is what the applicant did.[34] In this case, despite the absence of some of these aggravating features, the contextual circumstances to this offending reveal that this offending was 'grave'.
4. In any event, some of the applicant's submission simply go too far:

(a) We do not accept the applicant's argument that the offending was 'not protracted'. The offending lasted some 10 minutes. Although the offending was not repeated, and it was isolated, it was not momentary or fleeting. For the complainant, it must have seemed an eternity.

(b) Also, although there was no evidence of premeditation and planning, this was not entirely spontaneous and ill-considered offending. The applicant made a calculated decision to enter that bedroom in the dead of the night with a view to committing this assault.

(c) The applicant's submission concerning charge 4 - that it did not result in encouraging the complainant - downplays its gravity. There was a disturbing tone to the expression - 'I want to make love to you'. These words were uttered seriously while the applicant was sexually assaulting the complainant. The complainant was 'really scared' in that moment.

1. The applicant's submission that this offending did not fall 'at the upper end of the spectrum of gravity' goes nowhere. The sentences imposed in this case simply do not bespeak of the applicant having been sentenced for offending falling 'at the upper end of the spectrum'. So much is obvious when the sexual assault sentences (12 months' imprisonment) are measured against the yardsticks of the maximum penalty (10 years' imprisonment) and the standard sentence (4 years' imprisonment). Further, the judge did not state or imply that the applicant fell to be sentenced for offending 'at the upper end of the spectrum'.
2. The applicant had some personal matters in his favour including that he had never committed sexual offences previously, delay, limbs 5 and 6 of Verdins and the added burden of imprisonment by reason of his anxiety concerning his family's welfare. These factors were, however, relatively modest in number and nature, and, as the judge observed, other considerations - such as denunciation and the need for adequate punishment - occupied a central place in the sentencing calculus for this type of offending.
3. We would describe the sentences imposed in this case as very modest for offending against a vulnerable child, in breach of trust, by a mature man with a range of prior convictions (albeit non-sexual), who ran a trial and had shown no remorse or insight, and whose prospects were 'perhaps less than bright'.
4. In our view, the individual sentences, the orders for cumulation, and the resulting total effective sentence and non-parole period, were well within the available range.
5. There is no substance to the sentence application. It must fail.

1. Leave for an extension of time to bring the application for leave to appeal against sentence is refused.

[1] Sentencing Reasons, DPP v Blackmore [2025] VCC 654 ('Reasons'), [5].

[2] The complainant said that the applicant 'humped' her. 'Dry hump' is the description given to this activity by the sentencing judge (Reasons, [11]), which captures that this activity involved a form of simulated intercourse over her clothes.

[4] M v The Queen [1994] HCA 63; (1994) 181 CLR 487, 493 (Mason CJ, Deane, Dawson and Toohey JJ); [1994] HCA 63; Pell v The Queen (2020) 268 CLR 123, 147, [45]-[46] (Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ); [2020] HCA 12.

[5] M v The Queen [1994] HCA 63; (1994) 181 CLR 487, 494 (Mason CJ, Deane, Dawson and Toohey JJ); [1994] HCA 63.

[6] Pell v The Queen (2020) 268 CLR 123, 145 [39] (Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ).

[7] M v The Queen [1994] HCA 63; (1994) 181 CLR 487, 494-5 (Mason CJ, Deane, Dawson and Toohey JJ). See also Pell v The Queen (2020) 268 CLR 123, [38] (Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ); R v ZT [2025] HCA 9; (2025) 422 ALR 165, 167-8, [6]-[7] (Gageler CJ, Gleeson, Jagot and Beech‑Jones JJ).

[8] We evaluate the evidence on this issue below at [72]-[109].

[10] We this evidence in detail below at [61]-[71].

[11] The complainant said that the applicant (and his family) had been staying at the house for two weeks. MW said that her own family moved to the house on 25 June 2022, and that the applicant (and his family) stayed for about two to three weeks. DB said that the applicant (and his family) had been staying over at the house for three months. In his ROI the applicant said he took three or four days to move the complainant's family's household items from storage into their house and he and his family slept over at the house for 'about a week' (ROI Q 198-199).

[17] This case can be contrasted with those authorities examined in Lynn v The King [2025] VSCA 315, [93]-[98] (Emerton P, Priest and Kidd JJA).

[18] Generally, an accused person is bound by the way in which his or her counsel conducted the case at trial. See Nudd v The Queen [2006] HCA 9; (2006) 162 A Crim R 301, 306, [9] (Gleeson CJ); [2006] HCA 9 citing TKWJ v The Queen (2002) 212 CLR 124; [2002] HCA 46; Schanker v The Queen [2018] VSCA 94, [76]-[77] (Tate, McLeish JJA and Kidd AJA).

[19] See [72]-[109] above.

[20] The particulars of this ground have been reproduced above under the Introduction at [5].

[30] See [18] above.

[31] Clarkson v The Queen [2011] VSCA 157; (2011) 32 VR 361, 384, [89] (Maxwell ACJ, Nettle, Neave, Redlich and Harper JJA); [2011] VSCA 157; Leimonitis v The Queen [2018] VSCA 198, [32] (Priest JA, Weinberg JA agreeing at [38]).

[33] For example, when considering a standard sentence.

[34] Evans v R [2025] VSCA 248, [85] (Emerton P, Lyons and Kidd JJA); Brown v R [2021] VSCA 204, [28] (Maxwell P and Sifris JA).