BS v R

Court of Criminal Appeal (NSW)|2020-11-20|Before: Hoeben CJ, Davies J, Fagan J

Judgment

HOEBEN CJ AT CL: I agree with Davies J and the orders which he proposes.
DAVIES J: The applicant was charged with the following offences: Counts 1 and 2: Indecent assault of a person under the age of 16 years, namely, seven years, contrary to s 61M(2) of the Crimes Act 1900 (NSW) (now repealed). The maximum penalty for this offence is ten years' imprisonment. There is a standard non-parole period of eight years. Count 3: Sexual intercourse with a child under the age of ten years, namely, seven years, contrary to s 66A of the Crimes Act. The maximum penalty for this offence is imprisonment for life and there is a standard non-parole period of 15 years. Count 4 (alternative to Count 3): Indecent assault of a person under the age of 16 years, namely, seven years. Count 5: indecent assault of a person under the age of 16 years, namely, 12 years.
Counts 1 to 4 concerned the first complainant known as T. Count 5 referred to the second complainant known as Y.
Counts 1, 2 and 5 involved kissing the complainant in each case with his tongue. Count 3 involved digital penetration, with the alternative offence (Count 4) being rubbing the outside of the complainant's vagina.
The applicant pleaded not guilty and stood trial before Judge Pickering SC and a jury of twelve. The jury returned guilty verdicts in respect of Counts 1, 2, 3 and 5.

The offending

A summary of the evidence is as follows.
The complainants, T and Y, are the grandnieces of the applicant. The complainants' father is the nephew of the applicant's wife. At the time of the offending in January 2016, T was seven years old, Y was 12 years old, and the applicant was aged 72 years.
The complainants lived in Queensland with their mother and younger brother. Their father, who had separated from their mother, was also living in Queensland. They were on good terms despite the separation.
On 1 January 2016 the complainants' mother and father drove T, Y and their younger brother to Sydney. On 3 January their father called the applicant's wife, (his aunt) and arranged for the family to visit the applicant and his wife at their home the following day. The family arrived at the applicant's home some time between 11 and 11.30am, and stayed until the afternoon.
At some stage during the morning of the family visit, T asked her mother for a glass of water. The applicant offered to get T a glass of water, and the complainants' mother told T to go with the applicant. T went with the applicant to the garage area, which was attached to the house and down the hallway where there was a sofa, a television, a lounge and a fridge. The Crown case was that the applicant sat on the couch, grabbed T by the wrist, pulled her towards him, and held her where she was standing. He then kissed T on the mouth, and put his tongue in her mouth so that their tongues were touching (Count 1).
The complainants' mother noticed that T had not returned and called out for her. The applicant stopped kissing T when her mother called out. T pushed the applicant away and ran off, returning to the living area, and the applicant followed. The complainants' mother noticed that when T returned she was not herself and appeared upset.
After a late lunch, T went to the toilet which was down the hallway. T was approached by the applicant whilst washing her hands. The applicant whispered to T to come to his bedroom, and she followed him. The applicant sat on the bed and T stood in front of him. The applicant kissed T, again putting his tongue in her mouth (Count 2).
The applicant then turned her around so that T's back was facing him. She first attempted to distract him by speaking about something in the room, and then she tried to walk away, but he lifted her dress and put his hands inside her underpants and put a finger inside her vagina (Count 3). T later told police that the degree of penetration was "a little, just like that part here, but that part there" gesturing to her fingernail. T then went back to the living room where her parents were sitting.
As the complainants' family was leaving, Y was told by her parents to kiss the applicant goodbye. Y offered the applicant her right cheek for him to kiss, but he grabbed her by both sides of her face, kissed her on the lips, and put his tongue into her mouth (Count 5). The kiss lasted for a couple of seconds. Both of the parents saw the kiss, but did not see that the applicant's tongue went into Y's mouth.
In the car afterwards, the complainants' mother asked Y about the kiss, and she described it as "very, very yucky". T then said, "He kissed me as well and he put his tongue in my mouth". The complainants' parents then drove to a friend's house where they were visiting other friends. When they arrived, the complainants' parents took T into a separate room and asked her what had happened. T repeated that the applicant had put his tongue in her mouth, and also disclosed that the applicant had touched her on the "hanona" (T's word for her vagina). T was distressed at this time.
The complainants' parents' reported the allegation to police. T was interviewed on 6 January 2016, but Y was not interviewed until June 2017.
The applicant was arrested on 6 January 2016. After his arrest he participated in a recorded interview in which he denied having kissed or touched T at all on the day. The applicant did not give evidence at the trial. However, the applicant's daughter, R, gave evidence in the defence case. She said that she had attended the family lunch. R said that during the lunch T had asked for a glass of water, and she went with T and the applicant to the garage to get a glass of water. She saw the applicant get a glass of water out of the fridge. She did not hear the complainants' mother call out.
R said that the three of them then returned to the rest of the family. She maintained that she was with her father and T for the whole time that they were getting the water. She also said that she saw T go to the bathroom. She heard the toilet flush and saw T coming out shaking her hands. She said that T was only gone for a minute.

Ground 1: The learned trial judge erred in directing the jury that the evidence of the complaint by the two complainants was "some evidence independent of their evidence here in court on the TV screens".

In his summing up the sentencing judge said this: As I said to you, the primary way that the Crown seeks to prove its case is through the evidence of the complainants, but the Crown says that there is supporting evidence of the complainants in different aspects. One of the ways in which the Crown says that there is supporting evidence in both cases is the immediate complaint that both T and Y made to their parents about this incidents. (sic)
A little further on in the summing up his Honour said this: So, as a matter of law, the Crown seeks to use this evidence of complaint as evidence that is capable of supporting the truth of what the witnesses gave here in Court. And let me say something specifically about that. So, the first question for you as a jury is to decide whether you are satisfied that those complaints were made by Y and T in the way outlined by both them and also by their mother and father. That is a factual question for you to decide firstly. If you find that the complaint was made substantially to the effect that in T's case that she was subject to tongue kissing and penetration of her genitalia by the accused, then you can use that evidence of what was said in the complaint as some evidence that such an assault did occur. Likewise, if you are satisfied that Y complained in relation to count 5 on the indictment then you can use that evidence of what was said in the complaint of some evidence that such an assault did occur. That is, you can use it as some evidence independent of the evidence given to you of that incident by either complainant when they gave their evidence here in Court on the TV screens. The law says that because of the circumstances in which the complaint was made a jury is entitled to use what was said in that complaint as evidence of the truth of what T and what Y said against, and alleged against the accused. A jury is entitled to find the complaint was made at a time and in a manner that would indicate that the allegation was reliable, that is, that the allegation is less likely to have been fabricated by either T or Y and more likely to be accurate. It is a matter for you whether you draw the conclusion in this particular case and so treat the complaint evidence as evidence of the alleged assault by the accused in addition to the evidence that has been given about it in the Court room by Y and T. If you do use it as some evidence of the assault, that is, the subject of either any count on the indictment, then what weight or importance you give it is a matter for you. Whether you do use the evidence of the complaint in that way or not, that is, supportive of the truth of the allegation, the Crown asserts it has another purpose. The Crown contends the fact that T and Y raised the allegations against the accused at the time and the manner that they did would leave you to accept the evidence that they gave in the witness box. In other words, it makes their evidence more believable than if they had raised the allegation as they did. Again, it is a matter for you to decide whether the complaints were made. But if you are satisfied that it was, then the question you should ask yourself is, did the complainant, whether you are considering T or Y, act in a way you would expect them to act if they had been assaulted as they claim they had been. Is what they did the sort of conduct you expect a person who has been assaulted in the way they have, if you think that the complainant, whether it be T or Y has done what you expect someone in their position to do, that may support the Crown case because you may find there is a consistency between their conduct and their allegation that they make against the accused. … Of course, the fact that a person says something on more than one occasion does not mean that what is said is necessarily true or accurate. A false or inaccurate statement does not become more reliable just because it is repeated on one or more occasions. (emphasis added)

Submissions

The applicant submitted that the direction to the jury that the evidence of complaint was evidence "independent" of what the complainants said on screen was wrong at law and illogical. The applicant pointed to the definition of "independent" in the Oxford Dictionary, where it is said that the word means "free from outside control or influence; you should take independent advice" and "not connected to another; separate". The applicant submitted that "independent evidence" must mean evidence not dependent on another source for its truth or reliability.
The applicant drew attention to what was said in Regina v Skuse (NSW Court of Criminal Appeal, 24 October 1996, Unrep) where Mclnerney J (with whom Hunt CJ at CL and Smart J agreed) said of complaint evidence: If asked, the judge could have pointed out that the complaint gave no independent support for the complainant's evidence, but he was not asked to do so.
The applicant also drew attention to what was said by the High Court in Papakosmas v The Queen (1999) 196 CLR 297 at [17], that evidence of complaint cannot constitute corroboration in the technical sense, because it is not independent of the complainant.
The applicant accepted that no redirection was sought at the trial, and acknowledged that leave was required under rule 4 of the Criminal Appeal Rules 1952 to argue the ground of appeal. However, a basis for leave being given was submitted to be the fact that the direction given by the trial judge was in accordance with the Judicial Commission Criminal Trials Bench Book (the Bench Book).
The applicant relied on the decision of this Court in SB v R [2020] NSWCCA 207 where Rothman J (with whom Hoeben CJ at CL and Hamill J agreed) held that the direction in the Bench Book and an identical direction given by the trial judge in SB was a misdirection. The applicant submitted further that it could not be said in a case where the contested issues turned on the credibility of the complainant, that the proviso should be applied to say that no substantial miscarriage of justice occurred.
The Crown submitted that, read as a whole, there was no error in the judge's direction. This was because the judge was explaining to the jury that the complaint evidence was separate to, and additional to, the complainants' evidence on oath, and that the jury could consider the evidence of the complaints as a separate basis for finding that the alleged incidents took place. The trial judge did not direct the jury that the complaints corroborated the complainants' evidence. Reference was made to Parkinson v R [2016] NSWCCA 49 at [112]-[114] and to Papakosmas v The Queen (1999) 196 CLR 297; [1999] HCA 37 at [42] and [88]-[89].
The Crown pointed out that no objection was made by counsel for the applicant at the trial to the direction. The direction was contained within the Bench Book, and had been given in numerous trials without issue.
The Crown submitted that if the use of the word "independent" constituted a wrong decision on a question of law or an irregularity for the purposes of the third limb of s 6 of the Criminal Appeal Act 1912 (NSW), the proviso should be applied.

Determination

The ground of appeal and the circumstances giving rise to it are indistinguishable from the issue dealt with by this Court in SB v R [2020] NSWCCA 207. In that case, the applicant was charged with a number of sexual offences against his daughter when she was between the ages of six and eight. Complaint was first made a little over five months after the last occasion where sexual assault occurred. The sentencing judge gave a direction to the jury about the way they could use the complaint, which was identical with the direction in the present case, using the wording in the Bench Book.
Justice Rothman (Hoeben CJ at CL and Hamill J agreeing) said: [110] The directions given to the jury by the trial Judge were directions that were consistent with the suggestions in the Criminal Trial Courts Bench Book published by the Judicial Commission (hereinafter the "Bench Book"). Of itself, the fact that the directions come from the Bench Book does not result in the conclusion that they were correct. [27] Further, the circumstance that the directions are found in the Bench Book does not give it any greater or special status, in terms of its correctness or otherwise. [28] As was pointed out by Hoeben CJ at CL, [29] the Court can assume that the direction is generally provided. In and of itself that would seem to me to be a reason to grant leave under Rule 4, [30] which is required on this issue because it was not a matter raised during the course of the trial. [111] It should be noted at this stage that the earlier extract of the Summing-up makes clear that the trial Judge went on to comment to the jury that the mere fact that a person says something "on more than one occasion does not mean that what is said is necessarily true or accurate. A false or inaccurate statement does not become more reliable just because it is repeated on one or more occasions." [112] Nevertheless, it is necessary to deal with the suggestion that the complaint evidence is "independent". The ordinary meaning, relevant for this purpose, of the word "independent" refers to something "not connected to another; separate". A definition, which is particularly apt, provided by the Oxford Dictionary, [31] is "not depending on something else for validity, efficiency, value et cetera". [113] Complaint evidence that is admitted is evidence of the truth of the complaint, pursuant to the terms of s 60 of the Evidence Act 1995 (NSW). It is not "independent". Its validity, efficiency, value et cetera depends upon the truthfulness or accuracy of the complainant, who has otherwise given evidence or is available to give evidence.
His Honour then discussed what the High Court said in Papakosmas and said: [127] For present purposes, dealing with Ground 2 of the appeal, it is clear from the comment in the joint judgment in Papakosmas [42] , recited above, that evidence of complaint is neither corroborative nor independent of the complainant. As such, the direction, repeated from the Bench Book, is wrong and the argument in support of Ground 2 is correct. His Honour erred in directing the jury that the evidence of the complaint was independent evidence. [128] However, the establishment of that error only goes part of the way necessary for Ground 2 to be successful. As has been extracted, the trial Judge directed the jury that the fact that a person says something on more than one occasion does not mean that what is said is necessarily true or accurate. That passage qualifies the reference to the complaint being "independent" dramatically. It provides the context within which the comment relating to the evidence being "independent" is contained and through which it must be understood. [129] There is some doubt that the jury would have understood the latter comments as to the effect on truth of the repetition of a statement as related to the description of the complaint as "independent", albeit it is difficult to relate it to anything else. Moreover, transcript does not always do justice to a judge's Summing-up, which is delivered orally. [130] It seems to me, while the use of the term "independent" was erroneous and should be avoided in the future, given the latter statements, the use of the term "independent" did not result, in and of itself, in a miscarriage of justice and the ground of appeal must fail. Nevertheless, on this ground, I would grant an extension of time; grant leave to appeal; to the extent necessary; grant leave to raise the argument, notwithstanding the provisions of Rule 4; and dismiss the appeal.
That judgment had not been delivered at the time Judge Pickering SC summed up to the jury in the trial of the applicant. There can be no criticism of him for following what was then a direction hallowed by time: DV v R [2017] NSWCCA 276.
As in SB, while it was incorrect for the trial judge to tell the jury that the complaint was independent, when that statement is considered with what the judge said subsequently, that saying something more than once does not necessarily make it true, means that overall there was no misdirection nor was there any miscarriage of justice.
Given that the direction given by the judge was in accordance with the Bench Book, r 4 should not stand in the way of leave being given to argue this ground, although the ground ultimately fails.

Ground 2: His Honour erred in admitting the statement of [AA] dated 13 June 2017 on sentence containing a hearsay statement of [N]

At the sentence proceedings, both the Crown and the defence provided written submissions to the Court. In the Crown submissions, the Crown conceded that the applicant was a person of good character in the context of s 21(3)(f) of the Crimes (Sentencing Procedure) Act 1999 (NSW). The submissions of counsel for the applicant (who was not trial counsel) referred to the applicant not having a record of previous convictions, but did not refer to good character.
In the course of the proceedings on sentence, Dr Andrew Ellis, a psychiatrist, gave evidence for the applicant. His evidence was that the scanning of the applicant's brain while he was in custody showed that there was restricted blood flow to areas of his brain, which had caused parts of his brain to atrophy and die. He said that there were clinical findings and imaging findings, which supported the diagnosis of a neurocognitive disorder, or vascular dementia. Dr Ellis said "there is evidence that deficits in higher order executive functions increase impulsive behaviour and disinhibit usual prohibitions on sexual drives".
Dr Ellis was cross-examined by the Crown. He said that in part he was basing his conclusion on the information available to him that this was the first time any behaviour like this had occurred. The Crown then asked Dr Ellis to put to one side the assumption that this conduct had never occurred before. He was asked if that would make the connection between the brain degeneration and the offending behaviour less likely. Dr Ellis agreed that it would make the connection less likely, and the sexual interest in children would be more salient.
The Crown then sought to tender a statement of AA dated 13 June 2017. The tender was opposed by the applicant's counsel on the basis that it was hearsay.
The statement recorded that AA said that she spoke to other family members about "the way T was assaulted by the applicant". One of the relatives was a niece of the applicant, called N. The statement recorded N as saying to AA: 5. He's a sick bastard, he did the same thing to me when I was 8 years old. I used to live with [the applicant] when my dad passed away. I told mum about it and that's why we moved out of his house.
The statement went on to say that N told AA that it happened to her before she moved to Australia when she was living with the applicant in Iraq. At the time of the statement N was about 50 or 60 years old.
His Honour gave a judgment admitting the statement into evidence.
Having set out what appears above as to how the issue arose, the sentencing judge said this: I raised with the Crown the aspect that there was no evidentiary basis to her questioning: and as such in the sentence hearing, I did not know how I could possibly make any finding consistent with the Crown's ultimate approach to Dr Ellis's opinion; because as is obvious, questions are not evidence, particularly when there is no evidence before the Court supporting them. It was in that context that the Crown tendered this statement. No party has asked for the Evidence Act to apply. As such I do not have to consider any aspect of the Evidence Act in this consideration. Of course, even on sentencing aspects, the question of relevance is still an important factor in admission of evidence, not within the concept of section 55, but within the concept of sentencing law. Here, I ask myself the question, is this actually relevant to a fact an issue in the sentencing proceedings? In one respect it is, because Dr Ellis accepted that if there was evidence that there was a predisposition for a sexual interest in children, that it may undermine his findings. However, here I have some concern about whether the evidence in its current form can genuinely demonstrate this aspect. Because it is quite significant that firstly, this is a period of some potentially 40 to 50 years earlier, at a time when he could have been as young as in his 20s or late 20s. There is no evidence that there was any further activity with young children for a period then of about 40 to 50 years. I do not think that a Court can then just assume that even if this was established that that showed a previous predisposition to young children right throughout his life, right throughout the 40 to 50 year period of time. Also, in the form that is tendered here, it is still in hearsay form. Again, I accept that does not mean it is inadmissible because the Evidence Act does not apply, but it is still relevant for weight. It is in a hearsay form, in which there is a real imprecision about the actual acts, the circumstances of how they occur, or any way to really analyse the true weight of the evidence to understand how it may or may not undermine Dr Ellis's opinion. The reality is that even if I admitted it as an exhibit in the sentence hearing, I would give it so little weight that it would make no difference whatsoever to the determination of the issues that Dr Ellis's evidence went to counter. However, it seems to me that that is still the appropriate approach to take. In circumstances where there has been no application for the Evidence Act to apply, so it is technically relevant for the precise basis that the Crown asked, and in my view it should be made an exhibit in the hearing, and I will make it such. However, it is only going to have academic aspect to it, because I do not intend to give it any weight, or at least whatever weight I give it, would be so minimal that it will not support the undermining of Dr Ellis's opinion in this matter. However, I should state that there is still an issue, irrespective of this, about where Dr Ellis's opinion takes this sentencing hearing. There is other evidence about aspects of the underlying mental health of the offender, and there is a real argument about the actual impact that Dr Ellis's opinion should result in sentence on this matter. So I do not necessarily see this as the crucial aspect in relation to Dr Ellis's opinion, I just see this as one factor that could have been taken into account in assessing his opinion. However, as I said, I will give it minimal weight.

Submissions

The applicant submitted that there is clear authority that in sentence proceedings, if there is no order that the Evidence Act 1995 (NSW) applies, then the common law rules of evidence apply. Under those rules, the statement was clearly inadmissible.
The applicant submitted that the admission of the statement in the course of submissions meant that the applicant did not have the opportunity to challenge the statement, or to call evidence of the applicant's good character. In that way, the applicant was prejudiced.
The Crown submitted that there is a real doubt on the authorities about whether, in the absence of the Evidence Act applying, the common law rules of evidence apply. Reference was made to R v Elfar [2003] NSWCCA 358 at [25] and R v Alvarez [2011] NSWCCA 33; (2011) 209 A Crim R 297 at [66].
The Crown submitted that the applicant must show a House v The King error to succeed in an appeal against sentence. The Crown submitted that the statement was admitted for a limited purpose, and that the sentencing judge concluded that it did not undermine Dr Ellis's opinion. In that way, the applicant had failed to show the sentencing decision was affected by a House v The King error.
The Crown submitted that the statement was not admitted for the purpose of establishing bad character, but only for the purpose of rebutting the assumption Dr Ellis had made. As the sentencing judge's judgment makes clear, the Crown had foreshadowed, in the context of both the trial and the sentence proceedings, that if the applicant sought to rely on good character, N would be called to give evidence in rebuttal. The applicant did not seek to lead evidence of good character following the judgment admitting the statement.

Determination

No order was made pursuant to s 4(2) of the Evidence Act. The result was that the provisions of that Act did not apply. This Court held in R v Bourchas [2002] NSWCCA 373; (2002) 133 A Crim R 413 at [61] and Farkas v R [2014] NSWCCA 141 at [14] and [89] that in those circumstances the common law rules of evidence apply to the proceedings.
In Bourchas, Giles JA (Levine and Sperling JJ agreeing) said (after what Campbell J described in Farkas at [89] as "a detailed and insightful review of the case law and the writings of commentators"), at [61]: … In practice sentencing proceedings are conducted with a degree of informality. Unnecessary insistence on the strict rules of evidence is in no-one's interests in sentencing proceedings, and the customary co-operation between the Crown and the offender and making of admissions by the offender should so far as possible be insisted upon. But if there is good reason for objection to evidence in sentencing proceedings the objection when taken must be resolved and, apart from statute, must be resolved by application of the rules of evidence. In the absence of a direction pursuant to s 4 of the Evidence Act, the law of evidence unaffected by that Act applies.
In both Elfar and Alvarez this Court considered the issue of receipt of untested material, amounting to hearsay, from an offender directly by means of a letter to the court, and from a psychological report setting out information from the offender. Both cases discussed receipt of the material in terms of the principle often said to have originated in R v Qutami [2001] NSWCCA 353; (2001) 127 A Crim R 369. In neither Elfar nor Alvarez was Farkas or Bourchas cited to the Court. Qutami predated the decisions in Farkas and Bourchas.
There is an uneasy tension between Farkas and Bourchas on the one hand, and the cases which approach the matter on the basis of Qutami, because the latter group do not deal with the matter from an admissibility perspective, but rather speak of the weight to be given to the material, making the assumption that the material is admissible because the Evidence Act does not apply: see for example, Alvarez at [43].
There is also an uneasy tension between Farkas and Bourchas on the one hand, and what was said by the High Court in Weininger v The Queen (2003) 212 CLR 629; [2003] HCA 14 at [21]: The use of the phrase "known to the court", rather than "proved in evidence", or some equivalent expression, suggests strongly that s16A was not intended to require the formal proof of matters before they could be taken into account in sentencing. Rather, having been enacted against a background of well-known and long-established procedures in sentencing hearings, in which much of the material placed before a sentencing judge is not proved by admissible evidence, the phrase "known to the court" should not be construed as imposing a universal requirement that matters urged in sentencing hearings be either formally proved or admitted. While the High Court was dealing specifically with the wording of s 16A of the Crimes Act 1900 (Cth), the reference to "long established procedures in sentencing hearings" suggests that common law hearsay rules were never strictly applied in relation to the receipt of evidentiary material at sentencing hearings.
It is not strictly necessary to resolve the tension I have referred to in the present case. Whether the material should have been rejected as offending the common law hearsay rule (Bourchas at [61]), or whether the material was properly admitted but little weight given to it (Qutami at [58]-[59]), the sentencing outcome was not affected by the receipt of the material. In that way, no House v The King error is established.
In his Remarks on Sentence, his Honour said, Moving away from factors purely objective, it is to be noted that the offender, despite having no criminal history, has not sought to establish on sentence that he is a person of prior good character. A forensic position was taken at the trial too, that evidence of good character would not be led because the Crown had evidence of bad character. The same decision has been made here on sentence, and as such, he is not to be dealt with as a person of prior good character. However, it is actually a separate mitigating factor on sentence that he has no criminal history, and, therefore, I note and take into account, that he has never been previously criminally convicted of any offence at law.
That was entirely in accord with what appeared in the written submissions of the applicant at the sentence proceedings.
A little further on, his Honour said: This developed as a controversy, because the Crown did had (sic) evidence of bad character which they say demonstrated that this was not the only occasion where such behaviour had occurred. Indeed, I let into evidence in this sentence hearing, albeit in a hearsay form, that the Crown actually had available to call at the trial in a non-hearsay form, of an allegation of him behaving in a sexually inappropriate way to an eight year old, some potentially 40 to 50 years ago before this incident, although the date is not precise. While I have no doubt that evidence would have been powerful evidence to suggest that he was not a person of prior good character, I am not convinced that it is powerful evidence to unseat the finding of Dr Ellis on this occasion; partly because of the weight of the evidence in this proceeding being of a hearsay nature and its imprecision, but more in relation to the period of time. Whatever his behaviour was as a 20 year old or a man in his mid to late 20s, I am not sure can tell me much about now, him in his 70s, where there is absolutely no issue whatsoever, and the Crown has no medical basis, nor do they even seek to challenge the medical findings here, that he is suffering from some vascular dementia, and that that is likely to have impacted him, even if there was some prior aspect of him having some sexual interest in children. So my view, although I admitted the evidence, it does not have the weight to overturn Dr Ellis's finding. I understand and respect the Crown challenging this aspect. Indeed, Crown should challenge these reports more regularly, and although I found against the Crown, I do respect that the Crown have made the offender put this to strict proof; but I accept the findings of Dr Ellis in this regard. (emphasis added)
The right of appeal in relation to sentence is contained in s 5(1)(c) of the Criminal Appeal Act 1912 (NSW). The right, subject to leave, is to appeal "against the sentence passed". Section 6(3) provides: On an appeal under section 5(1) against a sentence, the court, if it is of opinion that some other sentence, whether more or less severe is warranted in law and should have been passed, shall quash the sentence and pass such other sentence in substitution therefor, and in any other case shall dismiss the appeal.
There is no right to appeal against interlocutory rulings made prior to imposing the sentence, unless that interlocutory ruling resulted in the sentence being erroneous. The findings made by the sentencing judge make clear that he accepted the evidence of Dr Ellis despite the statement. Dr Elllis's evidence was supportive of the applicant's case that the offending was related to the vascular dementia. In that way, the receipt of the statement by the sentencing judge had no influence on the sentence imposed.
Further, the sentencing judge's findings made clear, as the Crown said when tendering the statement, that it was not tendered to raise the applicant's bad character, but only to provide a basis for the answer Dr Ellis gave in cross-examination.
Nor did the receipt of the material preclude the applicant from adducing evidence of good character if he had chosen to do so. The decision not to do so must be seen as a forensic decision in the light of the arrangement between the parties. At the trial the agreement was that if the applicant did not raise good character, the Crown would not call the person referred to in the statement from AA to give direct evidence of the matters in the statement.
During the course of the sentence hearing the following exchange occurred between the sentencing judge and counsel for the applicant: HIS HONOUR: Is it the situation though that you're not relying on good character as a mitigating feature on sentence? CORONEOS: I am, and that was based upon the understanding that was had between the learned trial counsel and the learned Crown, and I unfortunately had to continue that agreement. Perhaps because a question in the negative was asked, counsel said "I am". What is clear, however, from what followed is that counsel was making clear that he was not relying on good character at the sentence hearing.
The sentencing judge referred to that matter in his interlocutory judgment where he said: As such, I can see the commonsense forensic decision made by counsel, and, in the circumstances, I can also see why now counsel appearing on sentence has chosen not to seek to prove a mitigating feature of good character on sentence, because the Crown could have taken the exact same approach here on sentence and called [N] herself to overcome the mitigating feature of good character.
It is also important to note that after his Honour delivered his interlocutory judgment, counsel for the applicant addressed his Honour, and concluded by saying, "I rely on my written submissions". Those submissions made no reference to good character, only that the applicant had no prior convictions.
All of those matters show that a forensic decision was made not to call evidence of good character. The applicant should not now be permitted to adopt a different approach on appeal to this Court: Zreika v R [2012] NSWCCA 44; (2012) 223 A Crim R 460 at [81].
I would reject this ground.

Ground 3: The aggregate sentence imposed on the applicant is manifestly excessive.

The sentencing judge found that the objective seriousness of counts 1 and 2 fell "comfortably somewhere between the lowest in the range of objective serious (sic) and the middle of the range of objective serious offence of that nature." In relation to count 5 involving Y, his Honour found that the objective seriousness was slightly less than count 1, but still within a very similar range in relation to that aspect. In relation to count 3 involving sexual intercourse his Honour found that it was "comfortably … between the bottom of the range and the mid range.
His Honour noted that the applicant did not seek to put himself forward as a person of prior good character, but he found that it was a separate mitigating factor that the applicant had no criminal history.
In relation to the applicant's subjective features, his Honour recorded in some detail matters in reports from the psychiatrists Dr Chew of 3 August 2018, Dr Ellis of 19 May 2019 and Dr Gordon Elliott of 15 August 2019. All of those psychiatrists had come to a similar view about the applicant's diagnosis although there were some minor differences between them. All of them considered that he suffered from a progressive dementia, probably of a vascular nature, and that he had some psychotic symptoms related to that dementia.
As noted earlier, the sentencing judge accepted Dr Ellis's evidence that the applicant had experienced deficits in higher order cognitive functioning at the time, which could serve as an explanation for his new and uncharacteristic impulsive sexual behaviour. His Honour accepted on balance that there was a causative link between the offending and the developing dementia which, his Honour noted, was not as bad at the time of the offending as it was at the time of sentence, some three and a half years later. His Honour found that there was no doubt that aspects of his moral culpability had less of a role to play because of the causal link between the offending and the dementia. His Honour held, nevertheless, that there was no question, as Dr Ellis had said, that the applicant knew what he was doing was wrong. In that way his behaviour still involved significant moral culpability.
His Honour held that because of the causal link, the importance of general deterrence would have less of a role to play, although it still carried some weight. His Honour held that there was no aspect of specific deterrence in the sentencing exercise.
His Honour noted from the comments of the psychiatrists that the applicant's time in custody would be more difficult for him because he did not have English as a first language, he was in his late 70s, and because of his dementia. His Honour said that those factors must be taken into account in determining the appropriate sentence, because it would weigh more heavily upon him. His Honour held that the applicant was not remorseful.
His Honour then discussed the impact of the offending on the two victims and he went on to say: The sentence may not be as long as they wish for, but as a matter of law, those factors in relation to his mental health, particularly the time in custody, in my view do have to bring this sentence down to some extent. If I do not bring this sentence down, I do not think that I am reflecting the principles outlined in De La Rosa [Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194], and I am conscious that even with this sentence, he will be released as a man in his later 70s, in poor mental health, in declining physical health; …
His Honour indicated that he was going to find special circumstances to a large extent because he wanted the applicant monitored for a significant period of time upon his release.
His Honour noted that the sentence involved totality. He said there were two different victims in the matter, and there must be an additional sentence to reflect what happened to Y, but there must also be a degree of extra accumulation for the additional offences committed against T. His Honour said: Of course, count 3 will dominate the sentence. It was the one that carried a life imprisonment, and a 15 years standard non parole.

Submissions

The applicant drew particular attention to what the three psychiatrists had said in their reports, and noted the sentencing judge's acceptance of a connection between the dementia and the offending. Senior counsel for the applicant submitted that his Honour's findings on the facts and his conclusions about the weight to be given to the relevant factors in determining the final aggregate sentence should be accepted. He submitted, however, that his Honour's generally favourable findings on those matters were not reflected in the ultimate aggregate sentence.
Senior counsel submitted that there were some unusual features in the case which made it difficult to find comparable cases. Reliance, however, was placed on R v Scott [2020] NSWCCA 81 and RC V R [2020] NSWCCA 76. Senior counsel submitted that the indicative sentence for count 3 was too heavy, and that that sentence has informed the aggregate sentence which, as a result, is manifestly excessive.

Determination

It is not necessary to set out the principles relating to a determination of whether a sentence is manifestly excessive. Another way of asking the question is whether the sentence is unreasonable or plainly unjust.
It is apparent from the Remarks on Sentence that, as the applicant acknowledges, the factual findings and the weight to be given to various factors were generally found by the sentencing judge to be favourable to the applicant. It is clear from those Remarks that, had it not been for the causal link between the applicant's dementia and the offending which his Honour found reduced his moral culpability, the sentence would have been higher.
His Honour correctly focused on the offence of sexual intercourse. His Honour indicated an indicative sentence of four years and six months with a non-parole period of two years and six months. It may be observed that the aggregate sentence was only a year longer than that indicative sentence, with the non-parole period being only six months longer. That was a small notional accumulation, not only taking into account that there were two victims, but that there were three other offences where questions of accumulation had to be considered. It cannot be said that the notional accumulation was not appropriate in the circumstances.
The issue of whether the aggregate sentence was manifestly excessive largely devolves to the question of whether the indicative sentence for the sexual intercourse offence was itself manifestly excessive.
There is no challenge to the finding that this matter fell between the bottom of the range and the mid range of objective seriousness. The total indicative sentence was less than one third of the standard non-parole period provided for this offence, and it cannot be overlooked that the applicant was being sentenced as a person found guilty by a jury after a trial. Nor can the maximum penalty of life imprisonment be easily ignored despite the finding of objective seriousness. The victim was aged only seven years, almost three years younger than the eldest child to which the offence relates. Moreover, the offending was a considerable breach of trust because of the relationship between the victim and the applicant. Accepting all of the favourable factors identified by the sentencing judge, it cannot be said that the indicative sentence for that offence was not within the range of appropriate sentences.
When considering the aggregate sentence, it should also be noted that his Honour found special circumstances to vary the statutory ratio significantly to 54.5%.
In my opinion, reliance on Scott and RC is of little assistance to the applicant. In Scott, the three counts of indecent assault consisted of the offender kissing his eight year old granddaughter on or near the vagina on the outside of her clothing, and one count of him kissing her on the vagina itself in a manner that amounted to cunnilingus. The sentence imposed at first instance was an aggregate sentence of six years with a non-parole period of three years and six months. The indicative sentence for the sexual intercourse was five years with a non-parole period of three years.
In this Court, the sentence was reduced to an aggregate sentence of five years with a non-parole period of two years and six months. The indicative sentence for the sexual intercourse was four years with a non-parole period of two years. In those circumstances, it is difficult to see how it can be said in relation to the present offending that an aggregate sentence and a non-parole period of only six months greater in each case was not within the range of appropriate sentences for the sentencing judge in the present case. Nor does that conclusion take any account of what was described as the offender's compelling subjective case for leniency in that matter.
RC involved one count of a grandfather digitally penetrating his six year old grandson's anus when he was washing him in the bath. The judge at first instance erroneously imposed a Community Corrections Order without obtaining the necessary report in relation to work availability. On a Crown appeal, this Court said that a sentence of three years' imprisonment was appropriate in circumstances where it was an isolated and transitory offence committed for a non-sexual purpose. In fact, for very specific reasons, principally relating to a fear of the offender contracting COVID-19 if placed into custody, the residual discretion was exercised not to interfere with the sentence, although erroneous.
In my opinion, the applicant does not show that the aggregate sentence imposed upon him was unreasonable or plainly unjust. I would reject this ground.

Conclusion

I propose the following orders:
Grant leave to appeal.
Dismiss the appeal.
FAGAN J: I agree with Davies J. I add the following with respect to ground 1. The part of the summing up that is impugned has been extracted by Davies J at [23]. For ease of reference I reproduce the sentence that is said to have been a misdirection concerning the use that might be made of the evidence that T and Y complained immediately to their parents: That is, you can use [the evidence of complaints] as some evidence independent of the evidence given to you of that incident by either complainant when they gave their evidence here in Court on the TV screens. As Davies J has said, it can be seen that no misdirection or miscarriage of justice arose from those words when one takes into account the two sentences that have been highlighted at the end of the full passage extracted at [23].
If it were necessary to judge the words complained of without regard to those two further sentences, for my own part I would conclude that they would be understood by the jury in a sense not involving misdirection. It would be evident to the jury that the learned trial judge did not mean, by the expression "independent of", that the contemporaneous complaints came from a source independent of T and Y themselves. Such a meaning would not make sense. The submission that the impugned words might have been so understood attributes to jurors that they may be irrational, or at least lacking in common sense, either of which I consider unjustified and contrary to both the experience and the assumptions of trial by jury. In my view it would be apparent to the jurors that his Honour used the expression "independent of" in the sense that the contemporaneous complaints of T and Y, whilst coming from the complainants, constituted pieces of evidence that were separate from and additional to the evidence that they gave in court.

Amendments 23 March 2021 - Further anonymisation of judgment 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: 23 March 2021

Crimes Act 1900(Cth)s 16A

Crimes Act 1900(NSW)ss 61M, 66A

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