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Representation: Counsel G D Wendler (Appellant) M Jones (Respondent) Solicitors Canberra Criminal Lawyers (Appellant) ACT Director of Public Prosecutions (Respondent)

File Numbers: ACTCA 44 of 2016 ACTCA 45 of 2016

Decision under appeal: Court/Tribunal: Supreme Court of the ACT Before: Murrell CJ Date of Decision: 6 September 2016 Case Title: R v Cruz Citation: R v Cruz [2016] ACTSC 19 R v Cruz (No 2) [2016] ACTSC 259 Court File Number: SCC 198 of 2015

MOSSOP J :

1. I agree with Bromwich J.

I certify that the preceding one [1] numbered paragraph is a true copy of the Reasons for Judgment of his Honour Justice Mossop

Associate:

Date: 23 October 2017

BROMWICH J :

2. This is a conviction appeal by Juan Carlos Cruz from his conviction, following trial by jury, on charges of engaging in sexual intercourse (cunnilingus) with, and committing an act of indecency (ejaculation) in the presence of, a female child who was at the time two years and 10 months old. It is also a Crown appeal against the sentences imposed.

3. It is convenient to refer to Mr Cruz as the appellant, despite him being the respondent to the Crown appeal. It is convenient also to refer to the child victim of the two relevant offences as the complainant, even though she did not make any complaint as such, provide a statement or give evidence.

4. The appellant appeals upon the grounds that:

(a) the verdict is unreasonable or cannot be supported having regard to the evidence; and

(b) hearsay evidence of the complainant should have been excluded in the exercise of discretion under s 137 of the Evidence Act 2011 (ACT).

5. The Crown defends both convictions and also appeals upon the basis that each of the sentences imposed was manifestly inadequate.

6. For the reasons that follow, both appeals should be dismissed.

Background

7. The following overview is largely drawn from the ex tempore reasons for sentence of Murrell CJ, given on 6 September 2016, four days after guilty verdicts were returned by a jury on 2 September 2016.

8. On 2 September 2016, a jury found the appellant guilty of two charges of engaging in sexual intercourse (cunnilingus) with, and committing an act of indecency (ejaculation) in the presence of, a female child who was at the time two years and 10 months old. This was alleged to have taken place on 27 June 2013. Under s 55(1) of the Crimes Act 1900 (ACT), engaging in sexual intercourse with a child under 10 years of age is an offence carrying a maximum penalty of 17 years' imprisonment. Under s 61(1) of the Crimes Act, committing an act of indecency in the presence of a child under the age of 10 years is an offence carrying a maximum penalty of 12 years' imprisonment.

9. In 2013, the appellant lived with his parents in a suburb in Canberra. He was at that time a 36-year-old single man, albeit that he gave evidence at his trial that he had at that time been in a long-standing sexual relationship with a woman and had engaged in sexual relations with other women.

10. The appellant came with his family from El Salvador as a child and he is a native speaker of Spanish. While he speaks fluent English, his mother speaks little or no English.

11. During weekdays in 2013, the appellant's mother provided family day care to her two young nephews and her niece, who were children of her daughters, and to the complainant. The complainant’s mother was a long-standing friend of one of her daughters. The complainant was well advanced in toilet training, but wore a particular kind of disposable nappy in order to complete her toilet training.

12. The appellant was in full-time employment, starting work very early each day before the children arrived, but often arriving home before the complainant was collected by her mother.

13. On Thursday, 27 June 2013, the complainant's mother collected her from day care. During the course of the car journey home, and following some general conversation, the complainant, in a conversation reproduced in further detail below, asked her mother not to clean her bottom with her tongue. When her mother questioned her as to what she meant, the complainant stated that "Tio Carlos licked my bum bum". The word "Tio" means "uncle" in Spanish, and was the term the other three children in day care used to refer to the appellant, who was their uncle. The term "bum bum" was used by the complainant at that time to refer to both her genital and anus area as she was too young at that time to distinguish between the two.

14. The complainant's mother reported the incident immediately. That evening, the complainant was medically examined and no injury was detected. However, forensic analysis of the interior of the complainant's nappy worn that day revealed evidence of both semen and saliva, particularly around the leg areas of the nappy.

15. Following further testing, sperm were observed in samples that were taken. DNA testing supported the proposition that the appellant was the source of the DNA. The evidence also supported a conclusion relied upon by the Crown that there was a high probability that the DNA came from the sperm and saliva that had been detected, although, in part only, it may have come as well from other bodily material, such as skin. The appellant challenges the true strength of that scientific evidence as part of his challenge to the safety of the guilty verdicts.

16. It was common ground that the appellant’s conviction on each of the two offences required the imposition of a full-time custodial sentence. The appellant was sentenced to two years and six months’ imprisonment on the charge of intercourse with a child under 10 years of age, and 18 months’ imprisonment on the charge of committing an act of indecency in the presence of a child under 10 years of age. The two sentences were partially accumulated by nine months, producing an overall head sentence of three years and three months’ imprisonment (or 39 months). A single nonparole period was imposed of 20 months. The appellant is eligible for release on parole in May 2018.

CONVICTION APPEAL

17. It is convenient to deal first with the ground of appeal concerning the exercise of discretion under s 137 of the Evidence Act before the broader ground of the verdict being unreasonable or unable to be supported having regard to the evidence.

Alleged error in the exercise of discretion under s 137, Evidence Act 2011 (ACT)

18. This ground of appeal was expressed as follows:

… the learned trial judge erred in refusing to exclude hearsay from the complainant to her mother on 27.6.13 under s.137 of the Evidence Act 2011 (ACT).

19. This ground concerned a pre-trial ruling by another judge of this Court, Burns J, granting an application by the Crown to admit the hearsay comments made by the complainant to her mother on the day of the alleged offences, 27 June 2013. The Crown’s application was made pursuant to s 65(2)(b) of the Evidence Act. The pre-trial application was heard by Burns J on 28 January 2016. His Honour delivered judgment on 15 February 2016. The trial commenced just over six months later on 29 August 2016. Murrell CJ declined to revisit that ruling at trial.

20. No issue is taken by the appellant as to the correctness of his Honour’s conclusion that the requirements of s 65 were met, such that the hearsay evidence was admissible. Rather, the appellant challenges his Honour’s decision, in the exercise of the discretion under s 137 of the Evidence Act, to refuse an application on the behalf of the appellant that the evidence, otherwise found to be admissible, be excluded on the basis that its probative value was outweighed by the danger of unfair prejudice to the appellant.

21. The hearsay evidence that was sought to be adduced and used was set out in Burns J's reasons at [3] as follows:

Complainant: You can't clean my bum bum with your tongue!

Mother: What?

Complainant: You can't clean my bum bum with your tongue!

Mother: No, we use wipes or toilet paper!

Complainant: Tio Carlos licked my bum bum.

22. The evidence as ultimately adduced at the trial, which was slightly different but to the same effect, was as follows:

Complainant: You cannot clean my bottom with your tongue.

Mother: What do you mean?

Complainant: Tio Carlos licked my bum bum.

Mother: What do you mean?

Complainant: He licked my bum bum.

23. It was asserted that, for the purposes of s 137 of the Evidence Act, Burns J determined the exercise of balancing the probative value and potential prejudice of the evidence by evaluating the reliability of the complainant's representation to her mother, contrary to the subsequent decision of the High Court in IMM v The Queen [2016] HCA 14; 257 CLR 300. It was submitted that had his Honour determined the balancing exercise required by s 137 in accordance with IMM v The Queen, greater weight would have been given to the prejudicial effect of the complainant's representations to her mother, because such representations could never be tested by the appellant in cross-examination. It was argued that this would permit the jury to use those representations in an unacceptable way and, in particular, potentially involve the jury not having full regard to the fact that the representations were made by a child just under three years of age.

24. It was further submitted that Burns J did not have regard, in the context of unfair prejudice to the appellant, to the possibility that calling the complainant may have assisted the appellant's case due to the possibility of evidence arising in cross-examination relevant to explaining the "forensic connection" between the complainant and the appellant. The term "forensic connection" was evidently a reference to the evidence of saliva and sperm, and DNA consistent with the DNA of the appellant to a high degree of correlation, being found inside the complainant’s nappy. It was submitted that there was a real danger that the jury would accept the complainant’s representations to her mother "as if it were in a vacuum".

25. It was also submitted that the complainant's evidence may have explained and/or supported an innocent explanation concerning the “forensic connection”, being an innocent transfer of the saliva, sperm and any other source of the appellant’s DNA.

26. At the hearing of the appeal, it was made clear by the appellant's counsel, in answer to questions from the bench, that this argument came down to the proposition that, while Burns J did not in terms make an assessment of reliability for the purposes of s 137, as plainly proscribed by the High Court in IMM v The Queen, it should be inferred that this was what his Honour in fact did. The passages of his Honour's reasons from which it was asserted that this inference should be drawn were as follows:

[16] The accused submitted that if the evidence of the representation made by [the complainant] on 27 June 2013 was admissible, it should nevertheless be excluded by virtue of s 137 of the Evidence Act on the basis that its probative value is outweighed by the danger of unfair prejudice to the accused. In determining the probative value of the evidence, that is, the extent to which it could rationally affect the assessment of the probability of a fact in issue, the proposed evidence is not to be considered in isolation. It will often occur that the probative value of a piece of evidence is only apparent when it is considered in the context of the other evidence in the proceedings, and the facts in issue. One of the facts in issue at the accused’s trial will be whether the accused engaged in an act of cunnilingus with the complainant, which by virtue of s 50 of the Crimes Act 1900 (ACT) is defined as an act of sexual intercourse. The statement by [the complainant] to her mother on 27 June 2013 that “Tio Carlos licked my bum bum” has significant probative value to establish that the accused engaged in sexual intercourse with [the complainant] when that evidence is considered with the evidence that:

(a) [the complainant] referred to the accused as Tio Carlos;

(b) saliva was identified on the nappy worn by [the complainant] on 27 June 2013; and

(c) semen found on the nappy worn by [the complainant] has a very high probability of coming from the accused.

[17] The location of semen on the nappy worn by [the complainant] does not, of course, provide direct support for the Crown allegation that the accused performed cunnilingus on [the complainant]. The relevance of this evidence, in my opinion, is twofold. First, it tends to negate any suggestion that saliva came to be on [the complainant]’s nappy innocently. In other words, it is capable of establishing that [the complainant] was the subject of sexual abuse. Secondly, if the jury is satisfied that cunnilingus was performed on [the complainant] on 27 June 2013, it is relevant to identifying the offender, it being unlikely in the circumstances revealed by the evidence that [the complainant] would have been sexually assaulted by two different people on 27 June 2013.

27. Carefully considered and fairly read, the above passages do not provide any proper basis for the asserted inference that Burns J conducted a proscribed evaluation of the reliability of the complainant's representation to her mother. It is plain that the reliability assessment took place purely in respect of the antecedent determination of admissibility for the purposes of s 65 of the Evidence Act. There is not the slightest indication in the paragraphs reproduced above that any evaluation of reliability was carried out when applying the test in s 137. To the contrary, it is clear that Burns J meticulously went about the required task in the correct way. His Honour correctly placed the evidence sought to be excluded in the context of the key components of the balance of the evidence in order to evaluate its probative value. That is the process mandated by the High Court, both before his Honour’s ruling, in Aytugrul v The Queen [2012] HCA 15; 247 CLR 170 at [30], and subsequently, in IMM v The Queen at [42]- [45]. His Honour then turned to the other side of the equation and concluded that the probative value was not outweighed by the danger of unfair prejudice. His Honour stated in the next paragraph:

[18] It must be accepted that reception of the statement made by [the complainant] to her mother will involve some prejudice to the accused. Because the accused will not be able to cross-examine [the complainant] there is a danger that the jury may give the evidence of the statement made by [the complainant] more weight than it deserves. This danger may be substantially ameliorated by appropriate directions to the jury, including a warning under s 165 of the Evidence Act that the evidence may be unreliable.

28. At the hearing of the appeal, counsel for the appellant appeared to be running an additional and somewhat different challenge as to the conclusions reached by Burns J in performing the required balancing exercise. This argument did not depend upon establishing any proscribed assessment of reliability as part of the application of s 137. It was conceded by counsel that he was running a somewhat different argument to that in his written submissions, in that he was challenging, as a stand-alone ground, the evaluative weighing exercise carried out by Burns J in finding that the probative value of the complainant’s representations to her mother was not outweighed by the danger of unfair prejudice. To the extent that there was any departure from the written submissions, the Crown did not object to this change of case and instead made submissions to meet it.

29. In asserting error in his Honour’s refusal to exercise the discretion under s 137 to exclude the relevant hearsay evidence, the appellant was required to demonstrate that it was not open to Burns J to reach the conclusion that the probative value of the statements was not outweighed by the danger of unfair prejudice to the defendant, in accordance with the well-established principles in House v The King (1936) 55 CLR 499 at 504-505. While his Honour’s reasons at [18], reproduced above, were the focus of attack in this regard, that paragraph must be read in the context of the balance of his Honour's reasons.

30. The relevant test for unfair prejudice for the purposes of s 137 is that stated in R v Sophear Em [2003] NSWCCA 374 applying long-standing High Court authority:

[120] Section 137 is only engaged where the probative value of the evidence is outweighed by its unfairly prejudicial effect. Unfair prejudice under the section arises where there exists the probability that the jury might misuse the evidence in some way other than for the purpose for which it was placed before them R v BD (1997) 94 A Crim R 131 at 139; R v Serratore (1999) 48 NSWLR 101 at [31]; Papakosmas v The Queen (1999) 196 CLR 297 at [91]- [93]. If the evidence is relevant and if there is no likelihood of the jury misusing the evidence in some way, then its probative value, or its lack of probative value, is a matter for the jury.

[121] I accept that the section also applies where the jury may give more weight to a particular piece of the evidence than it deserves: R v Yates [2002] NSWCCA 520 at [252]. But that consideration is not based simply upon the assessment of the probative value of the evidence. There must be some prejudice emanating from the evidence that will be likely to cause the jury to over-react to it in an illogical or irrational manner: Papakosmas at [92] or to rely upon it on a basis that was logically unconnected to the issues in the case: R v Taylor [2003] NSWCCA 194 at [93]. In exercising the power contained in the section, the trial judge should have regard to what warnings or directions might be given to the jury to ensure that such prejudice does not arise.

31. Counsel for the appellant accepted that the fact in issue to which the evidence went was the identity of the appellant as the person whom the complainant said had licked her "bum bum". It was confirmed at the hearing of the appeal that the substance of the appellant's case on this argument was that Burns J misunderstood the gravity of the evidence in respect of that issue. That argument should be rejected. It is clear that, in the context of the entirety of his Honour's reasons, the danger of unfair prejudice was fully appreciated, remembering that it is the danger of misuse, not use, of the evidence that is the focus of s 137. Indeed, it may be doubted that s 137 is directed to the sort of misuse asserted by the appellant, insofar as it is submitted that the jury might place greater weight on the evidence than would be properly open to it. In any event, it cannot be said that the substance of the concerns expressed on behalf of the appellant were not addressed by Burn J in his Honour’s pre-trial ruling, nor by the trial judge.

32. In all the circumstances, having regard to the content of the representations made by the complainant to her mother, the conclusion reached by Burns J was not only open to his Honour, but may readily be seen to be the only reasonable conclusion available. Any other conclusion would have been surprising when regard is had to the correct application of principle in the assessment of unfair prejudice for the purposes of s 137 of the Evidence Act. The bare fact that a defendant cannot cross-examine a witness is not necessarily decisive of this issue: R v Suteski [2002] NSWCCA 509; 56 NSWLR 182 at [126]. The loss of the opportunity to cross-examine and thereby test the reliability of hearsay evidence is the practical and inevitable consequence of the application of s 65 to allow hearsay evidence to be relied upon. The loss of the opportunity to cross-examine is not decisive in the circumstances of this case.

33. It needs to be remembered that the complainant was under three years old at the time of the representation to her mother. By the time of the trial she would have been just over six years old. The suggestion that the complainant could have given any meaningful evidence in cross-examination as to what she had said in a few sentences to her mother during the course of a short car journey three years earlier is, at best, highly speculative and at worst borders on the absurd. Having regard to the complaint’s age, there is no reason to suppose that she would have had any recollection of that conversation whatsoever even a short time later, let alone by the time of the trial, some three years later. It was even less likely that she would have been able to recall what she meant at the time, who she was referring to or any other details of that day, either general or specific. In those circumstances, the benefits asserted to have been forgone by the lost opportunity to cross-examine her were entirely illusory. Moreover, Burns J was correct to conclude that any danger of misuse of the evidence by giving it more weight than appropriate would be substantially ameliorated by giving appropriate directions to the jury, including a warning under s 165 of the Evidence Act that the evidence may be unreliable. Such a warning was given by the trial judge. No redirection was sought and no appeal point was taken in that regard.

34. In all the circumstances, there was no error on the part of Burns J in declining to exercise the discretion under s 137 to exclude the hearsay evidence of what the complainant had said to her mother. This ground of appeal must therefore fail.

Allegation that the verdict is unreasonable or cannot be supported having regard to the evidence

35. Although this ground is expressed in the notice of appeal in terms that “the verdict is unsafe or unsatisfactory”, counsel for the appellant correctly pointed out in his written submissions that this ground should be considered in the language of s 37O(2)(a) of the Supreme Court Act 1933 (ACT), namely, as whether the verdict is unreasonable or cannot be supported having regard to the evidence.

36. The substance of the appellant’s case on this ground was to the effect that the Crown case was incapable of excluding the reasonable possibility that the saliva and sperm, which the evidence established to a high degree of probability was the source of the DNA correlating with the DNA of the appellant, had made its way to the complainant’s nappy by innocent means. In one sense, this attack on the Crown case was quite narrow. However, fulfilling the obligation imposed on an intermediate appeal court in addressing such a global ground of appeal necessitates a reasonably detailed survey and consideration of the evidence. This Court must be satisfied that, on its independent assessment of the sufficiency, quality and nature of the whole of the evidence, including competing and inconsistent evidence, it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty: M v The Queen [1994] HCA 63; 181 CLR 487 at 493-4; Morris v The Queen [1987] HCA 50; 163 CLR 454 at 473 (‘Morris’); and SKA v The Queen [2011] HCA 13; 243 CLR 400 at [89] (‘SKA’).

37. Since M v The Queen, Morris and SKA were decided, it has been emphasised by the High Court in The Queen v Baden-Clay [2016] HCA 35; 258 CLR 308 (‘Baden-Clay’) (footnotes omitted) that:

65 It is fundamental to our system of criminal justice in relation to allegations of serious crimes tried by jury that the jury is “the constitutional tribunal for deciding issues of fact”. Given the central place of the jury trial in the administration of criminal justice over the centuries, and the abiding importance of the role of the jury as representative of the community in that respect, the setting aside of a jury’s verdict on the ground that it is “unreasonable” within the meaning of s 668E(1) of the Criminal Code is a serious step, not to be taken without particular regard to the advantage enjoyed by the jury over a court of appeal which has not seen or heard the witnesses called at trial. Further, the boundaries of reasonableness within which the jury’s function is to be performed should not be narrowed in a hard and fast way by the considerations expressed in the passages from the reasons of the Court of Appeal explaining its disposition of the appeal.

66 With those considerations in mind, a court of criminal appeal is not to substitute trial by an appeal court for trial by jury. Where there is an appeal against conviction on the ground that the verdict was unreasonable, the ultimate question for the appeal court “must always be whether the [appeal] court 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”.

38. The rationale for requiring an intermediate appeal court to conduct such a thorough overall assessment of the totality of the evidence is that when a doubt is experienced by an appellate court following such an assessment, ordinarily that will be a doubt which a jury also should have experienced. A key qualification to that ordinary basis for finding that a jury ought to have shared the appeal court’s doubts is when the advantage that the jury enjoyed in seeing and hearing the evidence at trial would have been such as to overcome the appeal court’s doubt. That qualification on an appeal court’s assessment is not a consideration in this case.

39. The appellant’s case in written submissions filed on his behalf provided an analysis of the aspects of the evidence to which this ground was directed and then articulated the following eight points developed from that evidence, which he particularly relied upon to support the assertion that the verdicts were unsafe (quoted verbatim with explanatory additions):

40. By June 2013 [the complainant] had been in day care at the home of the Appellant for around a year. Ms Pagan [a forensic biologist called by the Crown] accepted DNA was capable of innocent secondary transfer in a domestic environment. Dr McDonald [a consultant molecular geneticist called by the appellant] testified that given the very small quantity of sperm detected it could have been the result of innocent secondary transfer. 2. Ms Pagan conceded that without knowing the DNA of the Appellant’s father she could not exclude the father as a source of the DNA identified on [the complainant’s] nappy.

41. The detection of alpha amylase [an enzyme present in saliva] did not preclude the possibility that it had come from urine or some other fluid manufactured by the body rather than saliva. Ms Pagan confirmed she noticed yellowing on [the complainant’s] nappy. Ms Stone [a forensic biologist] confirmed the test for saliva had given a false positive in a particular area of the nappy. Dr McDonald confirmed that the two recognised saliva tests used on the nappy are not regarded as definitive tests for the presence of saliva. Further Dr McDonald said if saliva was in fact detected on the nappy there was no evidence it belonged to the Appellant. Swabs taken from [the complainant] during her medical examination and tested for the presence of saliva were negative. Given three out of the five differential extractions tests performed on a mixture of sperm and skin cells did not work there was a real question about the reliability and integrity of all the DNA testing by the prosecution experts.

42. Dr Morgan [a paediatrician working within the Child at Risk Health Unit of Canberra Hospital], who medically examined [the complainant], did not make any observation that was of interest or relevance to what was alleged to have happened to [the complainant]. [The complainant’s] genital examination was unremarkable. Melissa Roberts of the child sexual assault unit [of the Australian Federal Police] confirmed that [the complainant], on interview, said nothing of forensic value to her investigation. Ms Roberts when asking [the complainant] questions [the complainant] referred to the Appellant as “Carlos” not “Tio Carlos”.

43. The Appellant gave evidence that [the complainant] referred to him as “Carlos” not “Tio Carlos”. The mother of the Appellant had never heard [the complainant] call the Appellant “Tio” only “Carlos”. [The complainant] referred to the Appellant’s father as “Carlos”.

44. The Appellant’s mother at no time ever saw the Appellant alone with [the complainant] because she had sole responsibility for [the complainant].

45. [The complainant] was not called in the prosecution case and therefore not cross-examined as to what she had in fact said and meant by her statement “You cannot clean my bottom with your tongue, Tio Carlos licked my bum bum”, or whether by using the description “Tio Carlos” she was referring to the Appellant or somebody else.

46. The Appellant gave evidence suggesting the very small quantity of sperm detected on the nappy was likely a result of some past sexual self-gratification or sexual intercourse with his girlfriend and thus transferred to possibly a towel in the house which may then have come into contact with either [the complainant] or some person who then had contact with [the complainant].

47. The Crown’s written submissions correctly characterised each of these points as “fall[ing] into the trap of dissecting a circumstantial case into disparate pieces and giving separate consideration to each”. The substance of the Crown’s submission was that the approach on behalf of the appellant was to ignore the fundamental proposition and reality that a circumstantial case ordinarily depends upon an accumulation of facts and circumstances which, in combination, may be found by a jury to achieve what the parts may not or cannot achieve on their own, namely, proof beyond reasonable doubt of the charge or element of the charge for which the evidence is relied upon by the Crown.

48. Baden-Clay provides clear guidance in this situation (footnotes omitted):

46 The prosecution case against the respondent was circumstantial. The principles concerning cases that turn upon circumstantial evidence are well settled. In Barca v The Queen, Gibbs, Stephen and Mason JJ said:

“When the case against an accused person rests substantially upon circumstantial evidence the jury cannot return a verdict of guilty unless the circumstances are ‘such as to be inconsistent with any reasonable hypothesis other than the guilt of the accused’: Peacock v The King. To enable a jury to be satisfied beyond reasonable doubt of the guilt of the accused it is necessary not only that his guilt should be a rational inference but that it should be ‘the only rational inference that the circumstances would enable them to draw’: Plomp v The Queen; see also Thomas v The Queen.”

47 For an inference to be reasonable, it “must rest upon something more than mere conjecture. The bare possibility of innocence should not prevent a jury from finding the prisoner guilty, if the inference of guilt is the only inference open to reasonable men upon a consideration of all the facts in evidence” (emphasis added). Further, “in considering a circumstantial case, all of the circumstances established by the evidence are to be considered and weighed in deciding whether there is an inference consistent with innocence reasonably open on the evidence” (emphasis added). The evidence is not to be looked at in a piecemeal fashion, at trial or on appeal.

42. Those statements of principle in Baden-Clay reinforce what was stated in The Queen v Hillier [2007] HCA 13; 228 CLR 618 (‘Hillier’), a circumstantial murder case relying in part upon DNA evidence. The High Court in Hillier said at [46] and at [49]-[50] the following (footnotes omitted):

46 The case against Mr Hillier was a circumstantial case. It has often been said that a jury cannot be satisfied beyond reasonable doubt on circumstantial evidence unless no other explanation than guilt is reasonably compatible with the circumstances. It is of critical importance to recognise, however, that in considering a circumstantial case, all of the circumstances established by the evidence are to be considered and weighed in deciding whether there is an inference consistent with innocence reasonably open on the evidence.

…

49 In the present case, there was evidence (such as the evidence of unidentified DNA on the pyjama top) which was consistent with Mr Hillier’s innocence. But the question for the Court of Appeal was whether, on the whole of the evidence, it was open to the jury to be persuaded beyond reasonable doubt that he was guilty.

50 In that regard it is important to recognise that Mr Hillier gave evidence at his trial. The Court of Appeal made no reference to this evidence when considering whether the jury’s verdict should be set aside. One question which the jury was bound to consider was what they made of Mr Hillier’s evidence. Did they believe that Mr Hillier may have been telling the truth when he denied responsibility for Ms Hardwick’s death? Or were they, as the verdict revealed, positively persuaded on a consideration of all of the evidence (including his) that he was not?

43. The Crown’s written submissions on the conviction appeal addressed in considerable detail the nature and quality of the evidence in the Crown case, including, in particular, the forensic evidence. Colour copies of photographs of the complainant’s nappy in evidence before the jury were also furnished, as an aide to better understanding the evidence. Much of that detail goes beyond what is necessary or appropriate for reproduction in these reasons, even when considering an unsafe verdict ground of appeal, but it has been carefully considered. All of those submissions, in conjunction with the submissions for the appellant, have facilitated the necessary review of the evidence as it was given and presented. In many places, the same evidence is referred to in the competing submissions, but with a different emphasis.

44. The parties’ articulation of the competing views that might have been taken of the evidence assisted in better understanding how the jury would have been able to consider and understand what was before them. An overall observation to be made is that the Crown submissions were more balanced and more comprehensive, thereby providing a better sense of the effect of the evidence before the jury, both as to strength and weaknesses. The defence submissions presented an alternative, but less compelling, characterisation of the evidence.

45. In particular, the Crown submissions accurately pointed out that the key forensic evidence of the two forensic biologists called by the Crown was largely unchallenged, leaving as the real issue before the jury the circumstantial inferences that could be drawn. It may be observed that this highlights the value of trial by jury in providing for a constitutional group of ordinary citizens, bringing to this vitally important evaluative exercise their combined life experience and capacity for assessment of human affairs.

46. The following pithy dot point summary of the effect of the forensic evidence taken from the Crown submissions is of assistance:

The forensic evidence

 The evidence from [the complainant’s mother], and Ms Stone indicated that [the complainant] had not urinated in her nappy.

 The agar starch test and RSID [rapid stain identification series] test tested positive for saliva along both inside elastic edges of the nappy.

 Saliva is a very high source of DNA and DNA testing indicated profiles consistent with the appellant.

 The location of the saliva was along the inside of the nappy along the elastic sides adjacent to where the child’s genital area would sit in the nappy.

 Item 1-1SP and 1-9SP [samples taken from identified areas of the nappy] produced single male DNA profiles – Dr McDonald’s evidence was that this was evidence of relatively effective separation of sperm and non-sperm fractions optimal to large amounts of DNA and good evidence that DNA from the appellant was present. Further, Dr McDonald’s evidence was that in relation to 1-1SP that it was unlikely that the DNA came entirely from skin cells. This infers that in Dr McDonald’s opinion the DNA came in the main from the sperm cells that had been detected.

 Semen was located in the nappy on both sides of the elastic at the leg openings. This was inconsistent with the innocent hypothesis of transference. Even if this explained the sperm cells, it did not explain the presence of semen on the nappy, nor did it explain the presence of saliva on the nappy.

 The forensic evidence indicates saliva along the inside elastic edges of the nappy. Semen is present in these two areas. Sperm is located on both sides in the same areas which test positive for semen and saliva. Sperm is also located in the centre of the nappy and at the back of the nappy. DNA consistent with being that of the appellant is found on both sides of the crotch area and from the central area of the crotch where sperm is found.

 If the appellant had sex the weekend before 27 June 2013 (a Thursday) in his bed it would have dried out by 27 June 2013. Dried semen was an inferior vehicle for the transfer of sperm cells.

 The absence of saliva and sperm on the child can be explained by being wiped clean, by the appellant and later her mother.

47. The alternative hypothesis advanced on behalf of the appellant was that the sperm cells in the complainant’s nappy could be explained by innocent secondary transfer, perhaps arising by some form of indirect contact with a towel used by the appellant to wipe his penis, including by the complainant. However, as the Crown submissions pointed out, this did not explain the presence of sperm on both sides of the crotch area, the centre of the crotch and the back of the nappy. Nor did it explain the presence of semen inside the nappy, nor the presence of saliva (the very strong DNA result being strongly suggestive of saliva rather than any other source). While the jury were required to consider the secondary transfer explanation proffered on behalf of the appellant as an alternative explanation for the evidence consistent with innocence, they were entitled to exclude that explanation beyond reasonable doubt, and evidently did so. This was especially so in circumstances where the inference that the presence of sperm was not innocent was strongly supported by what the complainant told her mother to the effect that “Tio Carlos licked [her] bum bum”.

48. The rejection of the appellant’s alternative explanation was not just supported by abstract reasoning. It was also supported by the nature and quality of his own evidence. He gave evidence of masturbating and wiping his penis on a bathroom towel for the first time in cross-examination. He also said that he had used the towel to wipe himself after having sex. But this evidence only emerged after he had given evidence that he did not use a towel to wipe himself, but instead used toilet paper or tissues. The appellant’s oral testimony at trial varied in critical respects from the answers he gave to police, and also changed between evidence in chief and cross-examination. In those circumstances, there is no question that it was open to the jury to reject his evidence out of hand, such that it never became a viable basis for the alternative explanation he relied upon.

49. The substance of the Crown response to the eight points relied upon by the appellant was as follows.

50. As to the secondary transfer explanation proffered by the appellant, the questions put to one of the Crown forensic biologist witnesses and to the defence molecular geneticist as to the possibility of innocent secondary transfer given the small amount of sperm detected were at the level of theoretical possibility, and in a vacuum, rather than by reference to the actual forensic evidence going beyond the bare fact that sperm cells were present. In particular, the possibility of secondary transfer was not asked to be considered by reference to the disparate location of the sperm cells observed, nor in light of the presence of semen. Thus the scientific evidence supporting the possibility of transfer was in the abstract rather than being related to the actual facts and circumstances in which the sperm was found.

51. The fact that the Crown’s first forensic biologist witness could not exclude the possibility that the DNA found was from the appellant’s father misunderstands the evidence. It was the witness’ evidence that it was 15 trillion times more likely that the observed DNA profile originated from the appellant than from a father or child of the appellant. The defence molecular geneticist gave evidence that it was 100 billion times more likely that the DNA was from the appellant rather than from his father. On the evidence, while the suggested possibility that the DNA came from the appellant’s father, that was a very remote possibility that jury were entitled to reject.

52. The appellant’s reliance upon the possibility that the alpha amylase came from a source other than saliva had a number of different features, the Crown response to each being as follows:

 As to the suggestion that the presence of alpha amylase did not preclude the possibility it came from urine or something other than saliva, the evidence of the defence molecular geneticist was that the literature indicated that false positives in RSID testing came from wet urine rather than urine stains, yet the evidence was that the nappy was dry and not soaked in urine. It was common as between the expert witnesses that saliva was a rich source of DNA, while urine was a poor source. There was no evidence to indicate false positives for saliva; to the contrary, both tests were positive for saliva.

 As to the evidence that the Crown’s second forensic biologist confirmed that the test for saliva had given a false positive in a particular area of the nappy, this was a reference to her evidence in relation to a starch agar test carried out on the centre of the nappy. Her evidence was that this was a difficult test to administer to the rough and uneven surface of the nappy and she was therefore not prepared to treat it as a positive test because of those difficulties. Her evidence was that the test appeared to be a false positive, rather than being in fact a true false positive, and therefore that the test result needed to be treated with caution.

 As to the evidence of the defence molecular geneticist that the two recognised saliva tests were not definitive and if saliva was in fact detected on the nappy, there was no evidence it belonged to the appellant, this evidence was not to be treated in isolation and the presumptive tests for saliva had to be considered in the context of all the evidence. Properly regarded, the evidence of the saliva tests was an additional component of the Crown’s overall circumstantial case, which included evidence that semen and the appellant’s DNA were present, and evidence that the complainant told her mother that “Tio Carlos” had licked her “bum bum”.

 As to the absence of saliva on the complainant’s genital and/or anal area, that absence was consistent with evidence of her having been wiped by her mother and the possibility that she had been wiped by the appellant.

 As to the suggestion that doubt was thrown on the reliability and integrity of all of the DNA testing by the fact that three out of the five differential extractions did not work, this was a submission based on a misunderstanding of the evidence of the trial. Both the Crown’s first forensic biologist witness and the defence molecular geneticist gave evidence that differential extraction sometimes does not separate out all the epithelial cells from sperm cells. Properly viewed, this did not reflect adversely on all the DNA testing, especially given that this testing was never challenged at the trial, a hurdle that cannot be overcome by a submission of this kind.

53. The Crown submissions amply demonstrate that the defence case as to a possibility that the alpha amylase came from a source other than saliva was again a conclusion that the jury were entitled to reject.

54. The appellant placed reliance on the fact that the community paediatrician who examined the complainant after the incident found the genital examination to be unremarkable. However, as the Crown submissions pointed out, it is unclear from the appellant’s submissions, or indeed anywhere else, what sort of observations might be expected following an incident in which the appellant was found to have licked the complainant’s genitalia and ejaculated in her presence. In relation to behavioural issues which might be said to have arisen, while there was no expert evidence, common sense suggests that a child under the age of three would have no understanding of the wrongdoing that the evidence strongly indicated had taken place, especially given that the event was of short duration. Similarly, the absence of anything remarkable being said to the police begs the question as to what the complainant might be expected to have said, especially a day later to police officers the complainant had never met before.

55. The suggestion that the complainant did not refer to the appellant as “Tio Carlos” is contextually incomplete. The other children being cared for by the appellant’s mother did call him by that name, and, it may readily be inferred, did so in the presence of the complainant, at least from time to time. The complainant’s mother gave evidence that the complainant referred to the appellant by that name. While there was also evidence given that the complainant called the appellant’s father “Carlos” only, that had only come from the appellant’s mother, whose credibility was undermined by her relationship with the appellant and her obvious attempts to assist him in the evidence she gave.

56. The evidence that the appellant’s mother at no time saw the complainant alone with the appellant had to be understood in the context of her having given evidence that the appellant would play with the four children, including the complainant, which contrasted with his evidence that he played with the other three children, but not the complainant. The jury were entitled to have regard to that difference in the evidence and draw adverse inferences as to why the appellant would deny contact of the kind that his mother said took place. The evidence was that the appellant was trusted to be alone with the children. Moreover, it was clear from the appellant’s mother’s evidence that she was trying to help her son, for example by giving evidence that she recalled that her son came home at 5.30 pm on the day in question, yet conceding in cross-examination that she had no particular memory of that day.

57. The absence of the opportunity to cross-examine the complainant was a matter which the jury were directed to take into account when considering the complaint evidence. The complaint evidence was to be considered by the jury with all the other evidence, including the forensic evidence, the evidence that the other children called the appellant “Tio Carlos”, the evidence of the opportunity that the appellant had to obtain access to the complainant, and the complainant’s mother’s evidence of what the complainant meant when she said “bum bum”.

58. The appellant’s evidence in relation to ejaculating, suggesting a source of possible secondary transfer, was evidence that the jury were entitled to examine and accept or reject, in whole or in part, as they saw fit. That assessment was able to be carried out in light of how that evidence developed and changed over the course of cross-examination, leaving it open to the jury to conclude that his exculpatory evidence was fabricated, as squarely put him in cross-examination. The verdict reflects the reality that the appellant’s account had to have been rejected by the jury.

59. Counsel appearing for the appellant at the trial invited the jury to acquit on both counts on the indictment on the basis that there was an innocent explanation for the forensic evidence that linked the appellant to a physical association with the complainant. The Crown case was not so limited, relying on the totality of the circumstantial evidence before the jury. The jury were clearly informed and directed that they had to be satisfied of the guilt of the appellant on both counts beyond reasonable doubt on the totality of the evidence and, in particular, that the innocent explanations suggested on behalf of the appellant had to be not just rejected, but rejected beyond reasonable doubt.

60. The evidence of the complainant’s representations to her mother has been considered above. That was the basis for the police investigation as to whether someone had indeed licked the genital and/or anus area of the complainant and, if so, whether the person who had done so was the appellant as the representation suggested. It may be observed that, in isolation, the complainant’s representation on its own would have given rise to grave suspicions that the appellant had indeed engaged in a sexual act with the complainant, but alone would have been insufficient evidence to prove that had occurred.

61. The forensic evidence on its own would also have given rise to grave suspicions, albeit of greater probative value, calling for some kind of explanation. While that evidence alone would probably have been enough to charge and prosecute the appellant, a guilty verdict based on that alone would have been at least troubling, especially if the appellant had not given evidence as he did, and been cross-examined in a way that significantly boosted the Crown case.

62. The real strength in the Crown case was the combination of the complainant’s representation to her mother, the forensic evidence which, even on its own, was difficult to explain away convincingly by reference to a weak theory of innocent transfer, and the appellant’s own evidence, especially in cross-examination.

63. Having accepted the Crown submissions over those for the appellant, an independent review of the overall effect of the evidence leads comfortably to the conclusion that far from being unsafe, the verdicts were based on a strong foundation of compelling evidence.

64. There is no proper basis for any doubt that the jury were entitled to find the appellant guilty on both counts. In particular, the jury were entitled, on all of the evidence, to reject the asserted innocent transfer explanation for the presence of the saliva and sperm and associated DNA inside the complainant’s nappy, cogently established, on the whole of the evidence, not just the scientific evidence taken in isolation, to have been that of the appellant. Indeed, as in this case, circumstantial evidence may be highly compelling. By contrast, a case may be weak or equivocal notwithstanding that it is based on direct evidence.

65. The case for the appellant on this ground has not been made out. Accordingly this ground must fail.

CROWN SENTENCE APPEAL

66. The Crown sentence appeal was one based on an assertion of manifest inadequacy based on the magnitude of the sentences imposed in the context of prior sentences. The Crown submitted that the sentences imposed were unreasonable or unjust when due regard was had to the maximum penalties, the objective seriousness of the offences, subjective factors and relevant sentencing principles.

67. Crown sentence appeals must be approached with considerable appellate restraint, following House v The King and also Dinsdale v The Queen [2000] HCA 54; 202 CLR 321. Error must be established, whether express or inferred. It is no part of the function of this Court to substitute a conclusion it considers preferable to that formed by the trial and sentencing judge in the absence of such error being shown to exist. There was no allegation of overt error to explain the result arrived at by her Honour. The sentences imposed were undoubtedly merciful and quite lenient in all the circumstances. They may be seen to be at or towards the bottom of the appropriate range. But they fell within the broad sentencing discretion available to her Honour in all the circumstances.

68. This was not a sentence arrived at in the course of an evaluation only able to be carried out in the space of a few hours, as may occur at a sentence hearing on a guilty plea. Rather, the trial and sentencing judge had the benefit of seeing and hearing all of the evidence, including from the appellant in chief and in reasonably detailed cross-examination. Her Honour had before her an abundance of material upon which to carry out the required instinctive synthesis. For the following reasons, it has not been shown that her Honour imposed manifestly inadequate sentences, a high hurdle for the Crown to meet.

69. The Crown principally relied on an asserted manifest discrepancy between the sentences imposed and what were said to be adequate standards of punishment, having regard to the maximum penalties of 17 and 12 years for the relevant offences, and comparison of other sentences imposed in cases that were said to be not dissimilar.

70. As to the maximum penalties, both were expressly referred to by Murrell CJ. There is no basis for concluding that they were not given due weight. While the sentences imposed were a relatively small proportion of the corresponding maximum penalties available, the criminality attaching to each type of offence necessarily applies to a very wide range of offending behaviour, both as to objective and subjective features. The features applicable to the appellant detailed below explain why her Honour was entitled to conclude that the significant leniency reflected in the sentences was open to her Honour in all the circumstances.

71. It was not suggested that Murrell CJ misstated in any way the objective seriousness of the offences, or misunderstood or misapplied any of the subjective factors in play. As to the cases relied on by way of comparison, closer analysis reveals that each had sufficient points of difference to make them only a very general “yardstick” for measuring the appropriate sentences to be imposed. The offending in each of those other cases warranted the more severe sentences imposed by reason of important differences from this case. In that context, it is important to note the following principles as to sentencing consistency emerging from the High Court.

72. In Wong v The Queen [2001] HCA 64; 207 CLR 584 (‘Wong’), the plurality (Gaudron, Gummow and Hayne JJ) observed at [59] that:

recording what sentences have been imposed in other cases is useful if, but only if, accompanied by an articulation of what are to be seen as the unifying principles which those disparate sentences may reveal. The production of bare statistics about sentences that have been passed tells the judge who is about to pass sentence on an offender very little that is useful if the sentencing judge is not also told why those sentences were fixed as they were. (emphasis in original)

The same observation may be made about reliance upon sentences imposed in other cases advanced in support of a sentence appeal brought by either party.

73. In Hili v The Queen [2010] HCA 45; 242 CLR 520, the above quote from Wong was reproduced after the following passage at [54] (footnotes omitted):

In Director of Public Prosecutions (Cth) v De La Rosa, Simpson J accurately identified the proper use of information about sentences that have been passed in other cases. As her Honour pointed out, a history of sentencing can establish a range of sentences that have in fact been imposed. That history does not establish that the range is the correct range, or that the upper or lower limits to the range are the correct upper and lower limits. As her Honour said: “Sentencing patterns are, of course, of considerable significance in that they result from the application of the accumulated experience and wisdom of first instance judges and of appellate courts.” But the range of sentences that have been imposed in the past does not fix “the boundaries within which future judges must, or even ought, to sentence”. Past sentences “are no more than historical statements of what has happened in the past. They can, and should, provide guidance to sentencing judges, and to appellate courts, and stand as a yardstick against which to examine a proposed sentence” (emphasis added). When considering past sentences, “it is only by examination of the whole of the circumstances that have given rise to the sentence that ‘unifying principles’ may be discerned”.

74. In R v Pham [2015] HCA 39; 256 CLR 550, the relevant principles for the assessment of sentences were conveniently restated as follows at [28] (omitting footnotes):

(1) Consistency in sentencing means that like cases are to be treated alike and different cases are to be treated differently.

(2) The consistency that is sought is consistency in the application of the relevant legal principles.

(3) Consistency in sentencing for federal offenders is to be achieved through the work of intermediate appellate courts.

(4) Such consistency is not synonymous with numerical equivalence and it is incapable of mathematical expression or expression in tabular form.

(5) For that and other reasons, presentation in the form of numerical tables, bar charts and graphs of sentences passed on federal offenders in other cases is unhelpful and should be avoided. (6) When considering the sufficiency of a sentence imposed on a federal offender at first instance, an intermediate appellate court should follow the decisions of other intermediate appellate courts unless convinced that there is a compelling reason not to do so.

(7) Appellate intervention on the ground of manifest excessiveness or inadequacy is not warranted unless, having regard to all of the relevant sentencing factors, including the degree to which the impugned sentence differs from sentences that have been imposed in comparable cases, the appellate court is driven to conclude that there must have been some misapplication of principle.

75. The following matters were evidently of importance to Murrell CJ:

 There was no evidence of distress or physical harm occasioned to the complainant so as to aggravate the undoubted seriousness of what took place, although it must have been something that she did not like in asking her mother not to lick her “bum bum” – the complainant seemed to be unaware of the ejaculation or at least unaware of its significance.

 The offending was found to be opportunistic and of very short duration.

 There were no relevant prior offences and no evidence on sentence to suggest that this was not out of character.

 Although the appellant took advantage of his mother’s position of trust with the complainant, he was not himself found to be in any position of trust.

 There was no familial relationship involved.

 The offences occurred within a relatively short period of time, sufficient to be considered aspects of a single incident — albeit with distinct criminality — warranting nine months of accumulation.

 While the appellant could not positively be found to have good prospects of rehabilitation, there was no finding that rehabilitation was not possible or even likely. Although the appellant showed no contrition or remorse, her Honour observed that it was “early days” and one did not know whether, after an opportunity for reflection, the appellant’s attitude might change and he might become more amenable to treatment.

 The relatively low non-parole period means either that the appellant will not be released at the expiry of that period because he has not behaved in a way that warrants that taking place, or he will be under supervision for a considerable period of time with the “Sword of Damocles” of immediate and substantial imprisonment hanging over him, especially if he reoffends during any period of parole.

 The appellant has real and substantial ties to the community and a family who are likely to be able to facilitate his successful return to the community.

76. To the above may be added the following observations as to circumstances of which Murrell CJ must have been aware, even if specific reference was not made to them in her Honour’s sentencing remarks:  While all offences of this nature are serious, there is nonetheless a gradation of seriousness contemplated by the offence provisions – these were not necessarily as serious as other manifestations of the same offences, such as penetrative or otherwise physically harmful intercourse in the case of that offence.

 The trial transcript reveals that, while counsel appearing for the appellant at trial conducted a vigorous and probing case for his client, it was done ethically and professionally, which endures to the appellant’s benefit, whether express or implicit. Witnesses were treated with courtesy and respect. Relations between counsel could be seen to be proper and professional (a credit to both). The atmosphere such behaviour creates is undoubtedly conducive to forming a more benign view of the appellant than might otherwise have been the case, as the appellant is taken to have given instructions which facilitated the conduct of his counsel. Such a willingness to facilitate the course of justice may be taken into account on sentence: R v Doff [2005] NSWCCA 119; 54 ACSR 200 at [58(c)]. It is not to the point that this is no more than courts are entitled to expect. Such conduct is to be encouraged and credit given when it is due.

 While there was no contrition or remorse, that was something that was constrained by legal advice in light of the chance of success on appeal and a retrial.

77. By contrast, the following points may be made about the cases relied upon by the Crown, which limit their value as yardsticks with any significant bearing on the exercise of the sentencing discretion in this case. It may be observed that the Crown assertion that these cases involved not dissimilar sexual offences against very young children fails to have sufficient regard to the totality of the circumstances giving rise to the sentence imposed in each case, as is mandated by the High Court authority referred to above.

78. In R v Bull [2004] ACTCA 8, while it is true that there were significant factual similarities in that the offender had gone into the five year old victim’s bedroom and touched her genitalia, and semen was found on the inside of the victim’s underpants, with a finding being made that the offender had ejaculated in the course of the incident, other key features, both objective and subjective, were markedly dissimilar. While there was no evidence of direct violence involved, the child victim in that case screamed loudly enough to wake her mother. The child was sufficiently affected to refuse to sleep in the same room 14 months later, so plainly remembered what had happened to her and was seriously adversely affected to that extent. Mr Bull was a close friend of the family who had been asked to be the child’s godfather, and so was in a position of direct and substantial trust. Indeed, he had been sleeping in the same room as the child. He had prior convictions for serious repeated sexual assaults on his stepson and separately on his stepdaughter some 12 years earlier, for which he had been sentenced leniently to three-year concurrent sentences. The sentencing judge said this was not a case of a second offender, but rather someone who had previously repeatedly sexually abused two other children and, despite leniency and treatment, had reoffended. The sentence judgment was short and extempore, revealing little of the mitigating circumstances taken into account in this case, although he had a troubled past. While the sentence imposed in that case of six years and 11 months with a non-parole period of four years and seven months was considerably greater than in this case, the offending was objectively more serious and it should be observed that repeat offending immediately elevates the need for specific deterrence, to the point where it may be seen to be at least a very important, if not dominant, consideration – such a finding was made by the sentencing judge. That, with the trust aspect of the case, also elevated the need for general deterrence. With those critical features absent, and the lack of comparable mitigation shown in favour of Mr Bull, a direct numerical comparison becomes, in substance, the main basis upon which this case is relied upon, yet that is the very approach proscribed by the High Court.

79. In R v GE [2014] ACTSC 181; 242 A Crim R 41 (‘GE’), the offender was found guilty after trial of two counts of sexual intercourse by cunnilingus with his step granddaughter, who was under the age of 10. He had married the child’s grandmother before she was born, so that she always regarded him in the same way as a natural grandfather. The incidents took place over about two hours. The sentencing judge regarded the circumstances in which the offender came to be alone with the child as being significant, being that the mother and grandmother were visiting the mother’s uncle and offender’s brother in law, who was dying of cancer. The offender told the child to undress before assaulting her in two different parts of the house, with the child complaining shortly after leaving the offender’s house the same night, so was plainly conscious and it seems disturbed by what had happened to her. It also took place in the context of her being imposed upon as a “secret” to compensate for having disobeyed him earlier in the day, so had an element of compulsion or coercion in order to secure improper supposed “consent”. That means of extracting a form of “consent” was treated as an aggravating circumstance. The offending was also clearly planned, so neither spontaneous nor opportunistic. The evidence before the sentencing judge was that the child had been so scared and traumatised that she would hit her head against walls, and experienced nightmares, with the abuse continuing to haunt her for years. Five years later she was still petrified at the thought of encountering the offender and continued to need counselling. The offender had no criminal record and was otherwise of good character, but had no other significant mitigation of any kind. He was 63 at the time of sentencing. He was sentenced to seven and a half years on each offence, partially accumulated to produce a total head sentence of eight years with a non-parole period of four years and six months. This again was a position of direct trust, which must always be a very important consideration when offending is directed at young children. The duration of the offending was much greater, and it had the hallmarks of calculation rather than opportunism. The objective circumstances were considerably more serious. Again, the mitigation in this case is not reflected in the sentencing remarks in GE. Once the factual comparison is so limited, the real comparator again becomes numerical.

80. In R v Williams [2014] ACTCA 30, the offender encouraged a three year old child at a public library to sit with him, then digitally penetrated her twice, while also thrusting his groin against her buttocks. She said that she needed to go, at least suggesting discomfort or at least consciousness as to what had taken place. The offender was, on any reasonable view, a serious predator and a real risk to children at large, including in public places. There was at least a suggestion that implied threats played a part in the offending. He fled and was apprehended two days later. He had an extensive history of similar offending, with some five prior events which the sentencing judge outlined, making this the sixth offence of this kind. His only apparent mitigation was a background of severe disadvantage. The offence was committed whilst on bail for an assault charge, referred to below. In fact, the offender was on his way, as a registered sex offender, to make an annual report to police as required by that status, which the sentencing judge found should have acted as a timely reminder of the need to control his urges in relation to the violation of young people. His sentence was increased on appeal from six to eight years, and would have been 10 years but for his guilty plea. He was also sentenced to three years’ imprisonment for an unrelated assault occasioning actual bodily harm. The combined sentences produced a total sentence of nine and a half years with a nonparole period of seven-and-a-half years. The key differentiating features as against this case are the public and predatory nature of the sexual assault, the offender’s significant prior criminal history, the bleak prospects of rehabilitation, and the fact of commission of the offence while on bail. The sentencing judge inferred serious psychological effects on the mother as a result of the sexual offending taking place in a public place that should have been safe. The facts only therefore bear a superficial resemblance to the present situation. Once again, the dominant comparator is numerical, with the circumstances bearing marked differences.

81. It should be made clear that it was a matter for Murrell CJ as to the weight and applicability of the comparative sentences relied upon by the Crown. Her Honour was entitled not to regard the above three prior sentence cases as providing a usable “yardstick”. Once that view is formed, for it to be wrong, error must be demonstrated. Yet that has not been shown.

82. While, as noted above, the sentences imposed on the appellant were undoubtedly lenient and merciful, they have not been shown to fall outside her Honour’s broad sentencing discretion as applied to the particular facts and circumstances of this case. The Crown sentencing appeal must therefore be dismissed.

Conclusion

83. The appellant’s conviction appeal must be dismissed, as must the Crown sentence appeal.

I certify that the preceding eighty-two [82] paragraphs numbered [2]–[83] are a true copy of the Reasons for Judgment of his Honour Justice Bromwich

Associate:

Date: 23 October 2017

ROBINSON AJ :

84. I agree with Bromwich J.

I certify that the preceding one [1] paragraph numbered [84] is a true copy of the Reasons for Judgment of his Honour Acting Justice Robinson

Associate:

Date: 23 October 2017