DJB v R R v DJB

CATCHWORDS: CRIMINAL LAW - Conviction appeal and Crown appeal against sentence - unlawfully administering an overpowering drug Diazepam with intent to have sexual intercourse - sexual intercourse without consent - 14 year old victim - amendment made to original indictment - whether trial a nullity - directions to jury - whether directions caused jury to confuse the conduct of the appellant with that of his son - whether jury was misdirected on intoxication - whether trial judge unreasonably restrained the appellant's cross-examination rights - CROWN APPEAL - whether offences involved distinct acts of criminality - failure to accumulate sentences found

Criminal Procedure Act 1986 (NSW) Crimes Act 1900 LEGISLATION CITED: Criminal Appeal Act 1912 Crimes (Sentencing Procedure) Act 1999 Firearms Act 1996

Des Rosiers v R [2006] NSWCCA 16 MLP v Regina [2006] NSWCCA 271 Munday v Gill (1930) 44 CLR 38 Pearce v The Queen (1998) 194 CLR 610 R v Howard (1992) 29 NSWLR 242 R v Janceski (2005) 64 NSWLR 10 R v Landy [1943] VLR 73 R v Mills (2005) 154 A Crim R 40 CASES CITED: R v Moffit (1990) 20 NSWLR 114 R v Qutami (2001) 127 A Crim R 369 R v Sepulveda [2003] NSWCCA 131 R v Ta (2003) 57 NSWLR 444 R v Tagaras (NSWCCA, unreported, 9 April 1974) R v Taylor [2003] NSWCCA 194 R v Wall [2002] NSWCCA 42 R v Way (2004) 60 NSWLR 168 Regina v Stankovic [2006] NSWCCA 229 Veen v The Queen (No 2) (1988) 164 CLR 465

PARTIES: DJB (Appl in 2007/603 - Resp in 2006/2367) The Crown (Appl in 2006/2367)

COUNSEL: M C Ramage QC (DJB) L M B Lamprati SC (Crown)

SOLICITORS: Jeffreys & Associates (DJB) Director of Public Prosecutions (Crown)

IN THE COURT OF CRIMINAL APPEAL 2007/603 2006/2367

McCLELLAN CJ at CL HIDDEN J PRICE J

TUESDAY 17 JULY 2007 DJB v R R v DJB Judgment 1 McCLELLAN CJ at CL: The appellant was originally indicted jointly with his son, NB, in relation to three counts. The indictment read as follows: DJB On 9 October 2004 at Narrabri in the State of New South Wales did unlawfully cause TE to take an overpowering drug, Diazepam, with intent to enable himself to commit an indictable offence, namely sexual intercourse without consent. DJB and NJB On 9 October 2004 at Narrabri in the State of New South Wales did have sexual intercourse with TE, without the consent of TE, knowing she did not consent thereto, in circumstances of aggravation, DJB and NJB then being in company. DJB On 9 October 2004 at Narrabri in the State of New South Wales did have sexual intercourse with TE, without the consent of TE, knowing she did not consent thereto, in circumstances of aggravation, TE then being under the age of 16 years namely 14 years of age." 2 This indictment was presented on 2 September 2005 when both the appellant and NB pleaded not guilty. However, NB asked for a separate trial and, following discussion between his counsel and the Crown Prosecutor, the trial was adjourned. It would seem that NB had given instructions that he would plead guilty if separately indicted. This occurred. 3 On 14 November 2005 a fresh indictment was presented which confined the charges to the appellant. That indictment was in the following terms: "DJB On 9 October 2004 at Narrabri in the State of New South Wales did unlawfully cause TE to take an overpowering drug, Diazepam, with intent to enable himself to commit an indictable offence, namely sexual intercourse without consent. DJB On 9 October 2004 at Narrabri in the State of New South Wales did have sexual intercourse with TE, without the consent of TE, knowing she did not consent thereto, in circumstances of aggravation, TE then being under the age of 16 years, namely 14 years of age. DJB On 9 October 2004 at Narrabri in the State of New South Wales did have sexual intercourse with TE, without the consent of TE, knowing she did not consent thereto, in circumstances of aggravation, TE then being under the age of 16 years, namely 14 years of age." 4 The drafting of the second count was changed in relation to the circumstances of alleged aggravation. In the first indictment the pleaded circumstance of aggravation was that the appellant was in company with NB. In the second indictment the pleaded circumstance of aggravation was that the victim was under the age of 16 years. This count was put to the jury on the basis that the appellant had "aided and abetted" NB, the latter having had intercourse with TE. 5 The appellant was convicted on each count and sentenced to concurrent terms of 12 years imprisonment comprising non-parole periods of 8 years to commence on 11 October 2004 and expire on 10 October 2012 and a balance of 4 years to expire on 10 October 2016.

The facts 6 The complainant was a 14 year old girl who was staying with her cousin who lived across the road from the appellant. On 9 October 2004 she spent time with the appellant's sons, 14 year old NB and 12 year old MB. They set some rabbit traps and played football. 7 After a time the complainant went back to her cousin's house to obtain a drink. A while later the complainant returned to the appellant's house to again play football with the boys. The appellant was not home but arrived after about half an hour holding a bottle of rum. Both the sons had a drink and the complainant had a glass of diet Coke. When they finished playing football, they went inside the appellant's house to play with the PlayStation. 8 The appellant asked the complainant if she wanted a drink of Diet Coke. She said "yes." She gave evidence that the next thing she remembered was waking up in the appellant's bed with his hand over her mouth. She managed to get away by kicking him in the groin and running outside. Her shirt was twisted and her bra was undone. She ran around trying to find the front door but when this failed she left by the back door, jumped the fence and ran to her cousin's house. 9 When she arrived at her cousin's place her uncle attempted to settle her down before taking her to the police station. Constable Grant Bell arrived at the station at about 2.30 am. After she had been at the police station for about 3 hours the complainant was taken to the hospital. 10 In her evidence the complainant said of the meeting with the appellant when he came home holding a bottle of rum: "He had a bottle of rum and he was out the back and he gave N and M a drink of it, and he asked me and I said, no, and then we just kept playing football for about an hour and then he told N to, if we wanted to go inside, play PlayStation. So then we went and played PlayStation and he asked me if I wanted a drink of Diet Coke and I said, yeah, and then next thing I woke up in his bed with his hand over me mouth." 11 The complainant said that while they were outside the appellant was "saying dirty stuff to her." "He's saying stuff about head jobs. He offered me $50 if I gave him a head job and I said, No, and then he offered me $100 and I said, No, and that is when I went back to [her cousin's place] to get a drink and that." 12 She said that when the appellant came back from town he was "just saying stuff like that and he's going, you're lips are big and I go, yeah, and he goes, no, not the one upstairs, the one's down lower, and all dirty stuff like that." 13 The appellant's sons were standing about 2 metres away but the complainant believed they did not hear what the appellant had said. When she told NB that their father had just offered her $50 then $100 for "a head job" NB said "yeah I know, he was talking about it earlier." 14 At another point in her evidence the complainant said that after they had gone inside and were playing the PlayStation the complainant said "we're just racing each other and that, and (the appellant) asked me if I wanted a diet Coke and I said, yes, and then he brought it out and he told NB to keep racing me, like, in a real queer way, and then he brought back the drink and he said, Cheers, and he said to skull it. So I skulled it and then I woke up in his bed." She said that she did not see the appellant mix the drink and it just tasted like diet Coke. 15 After she had returned to her cousin's place she noticed that she had a "hickey" (love bite) on the left side of her neck and one on her right breast. 16 When she was examined at the hospital she was found to have blood in both her ears and in her hair. She had vomit all through her hair and she said her stomach felt "just, like, crook as." 17 The complainant gave evidence that she had not consented to anybody having sexual intercourse with her that night. She said that at the time of the offence she was not on any medication and did not take any type of medication with Diazepam in it. 18 When cross-examined the complainant denied any memory of having sex with NB or drinking alcohol that evening. She agreed that the possibility she had been drugged was first raised with her by the doctors in the hospital. She denied saying that she was drunk or that she had told anyone she had been drinking. However, she did say she had passed out. 19 The complainant accepted that the sequence of events which she recorded in her record of interview may not be entirely correct. However, if there was an error it was of no significance. 20 The complainant said that she recalled that when she woke up in the appellant's bedroom it was pitch black and her head was spinning. She said she could not focus and she was not aware of what was happening around her in the lounge room. She said that when she woke up she knew from its size that it was the appellant's hand that had been over her mouth. She accepted that at the police station she said that it was either the appellant or NB but as she became less shocked she said her memory became more certain. 21 The complainant agreed that she had a recollection of kissing NB that evening in the lounge room. She said she kissed him on the cheek. She said that she had no recollection of having had sex with him or saying during intercourse "Oh that is good." She disagreed that she was flirting with NB the whole afternoon. The complainant had no recollection of vomiting in the bedroom and had no recollection of NB trying to mop it up. 22 The appellant's son, MB, who was 12 years at the time of the offence, was an important Crown witness. Although he was staying at his father's place on the day of the offence, he usually resided elsewhere with his mother and her boyfriend. He made a record of interview which was tendered in evidence and played to the jury. He said that when MB, NB and the complainant were at the appellant's house playing a game of football: "… and then me dad and that was chattin' her up, sort of thing, and she wanted me dad, like, me dad went to buy her a pack of smokes, and then when me dad was gone, she said that me dad said to her that he'll pay her $100 to give, like, have sex with him. And then after that we was playin' footy and that, me and me brother, and she was watchin', and what else was it? And after that we were talkin' about it and talkin', and then me dad and that, like, me dad suggested that, Go buy a big bottle of rum, Go buy some rum, or somethin', to like, drink it and all that … and then get drunk, and [the complainant's], like, she agreed to, like, get drunk and that …." 23 MB said that he himself had drunk some rum with diet Coke and after they had gone inside his father had filled his glass again and he was sick. He said that his brother (NB) was "pashing" the complainant and his father went out into the kitchen and mixed what MB thought was "bicarb soda or somethin'" in some water. The interview contained the following exchanges: Q: Yeah? A: I'm not exactly sure what it was, but what it looked like in the glass with the water, 'cause he used to drink it all the time to clean himself out, and it just looked like that. And then he poured it into her drink, 'cause he was puttin' about that much in a schooner, it was, schooner glasses, and then toppin' it up with diet Coke. And then he poured stuff in it and then it all just foamed up, sort of thing, and then me brother was, like, tellin' her to drink it and that. And then she was basically knocked out, almost, and me dad and me brother took her in and put her on the bed and … Q: Mmm A: … then me brother was, like, got on the bed and was pashin' her, and then me father was basically just, like, just pulled her pants down and pulled me brother's pants down, and then me brother started havin' sex with her, and then he was doin' that for about 10 minutes. Then me dad pulled, pulled me brother off and then he pulled her over to the side of the bed, like, while me brother was havin' sex with her, me dad pulled his, like, took his undies and everything off, his pants and that, and then he pulled her over to the side of the bed, like, and put her legs in the air and he started havin' sex with her. And then we went out and, like, he started hurtin' her, he, she was yelln' that, You fucked me hip, 'cause, like, he pushed her hip right down, oh, no, that's right, we went into, me dad asked us to go get the olive oil. We went in there to get the olive oil and then, while we was in there, she fell off the bed, like, she fell off the bed and hit the cupboard and we was in there and then the photo fell off the wall and smashed on, near his cupboard. And then, then she started yellin', Oh, you fucked me hip, and all that, and I can't really remember it. And then she … Q: What happened after that? A: … she was, I can't really remember but she started yellin', You're hurtin' me, you're hurtin' me, and all that, and then she was yellin', I'm scared, and all this. And then me dad's goin', Wake up to yourself, and all that, and then after that, me brother and me was tryin' to get him off her, and then me dad just, like, went, smack, and smacked me brother in the mouth and me brother was walkin' round like he was sort of puttin' his arms above his, above his head shakin' 'em and sort of half cryin', sort of thing, and then sort of stompin' his feet and that, and tryin', he's sayin', How can we stop him, and everything. And then, oh, like, me dad was, she was tellin' me dad to stop and everything … Q: Mmm. A: … but me dad wouldn't stop and that. And me brother sort of chucked a schiz sort of thing, like, wasn't hurtin' no one or nothing, but he sort of didn't know what to do. And then she was screamin' that she wanted, who was it? Was it, I think it's T she was yellin' or something', or, oh, what was it? Oh, well, it was whoever, whoever her cousin or brother or whoever it was girlfriend, that's who she was yellin' out to. And then, oh, and then me brother kept getting' me to go out and check if anyone was home, and, like, they come to the door and they said, Is [the complainant] here? Then me brother said, No, she's not here, and then me dad goes, Last time we seen her, she was goin' up the shop. And then he kept getting' me to run out and see if anyone was home. There was no one home for, I don't know about an hour, 2 hours or somethin', and then, like, they fell off the bed and then me dad left her and, like, we come out of the room, me dad did and that. And I didn't know whether to run over the road, see if anyone was home and get 'em to come over or not, and then I thought if I did, me dad would've flogged the shit out of me. Q: Sorry. Yeah? A: And then, like, I kept runnin' out the door, runnin' to the gate and runnin' back, sort of thing, didn't know whether to do it or not. And then, and then, like, me dad and that come out of the bedroom … Q: Mmm. A: … then we made a cake. Me dad said he wanted some cake and coffee, so we cooked a cake, and then we had to make him a coffee and everything. And, like, she spewed everywhere, she was layin' on the floor and, like, spewed all over herself, and then, like, I heard her spewin' so I ran in and lifted her up so she wouldn't choke or anything. And then what was, and then I told, yelled out to me brother to come and help, and then me dad was sayin', Just, just leave her there. And then he was forcin' us to clean his floor and everything and then he, me brother and that was tryin' to, me brother and me dad was tryin' to make me take her clothes off to, so they could go wash 'em. And then I, I didn't want to touch her, 'cause I didn't want to get into trouble for nothin', 'cause I knew that he would've ended up gettin' in trouble. And then me brother and me dad took the clothes off her and then they made me take 'em out and put 'em in the washin' machine and we had to clean all the spew up and everything. And after that, me dad was tryin' to have sex with her again, and then she's yellin', Leave me alone, don't touch me, and, I want, whatever her brother or cousin's, T, or whatever her name is, she was yellin' out for her, then she's yelled, then she was yellin' out to me brother and she's yellin', Take me home, NB, take me home. And then me brother was sayin', Yeah, I will if you be quiet. And then she's yellin' that, Don't touch me and that. I've already said that. Oh, I just can't think. Q: That's all right, you're doing well. A: Yeah, after that, then about half hour after that or somethin', I can't remember in between … Q: Mmm. A: … sort of thing, and then I think it was, she got up, like, walkin' round the house sayin', yellin', Where's the door, NB, show me the door, and everything. And then me dad's sayin', Don't let her out the door, 'cause she's drunk and off her head and everything, and if you let her out the door she'll probably go and get run over. And then she was yellin', MB, where's the door? And then I was just sayin', I don't know, 'cause oh … Q: Mmm. A: I just said, I don't know where it is, 'cause I didn't want me dad to do nothing. And then she kept yellin', and stuff and then me dad said, If you keep yellin' and screamin', you spewin' bitch, I'm goin' to call the police. And she's yellin', Call the police and I'll have you on charges, and stuff like that, she was. And then she said, I'm goin' to have you on charges for rape, and then she was, she got up, like, me dad was tryin' to have sex with her again, then she got up, runnin' round the house lookin' for the door, and then me and me brother was hidin' from her, like, 'cause we didn't want her to see us, and, yeah, and then she kept yellin' and screamin' and stuff and she spewed all through me dad's bed and everything, and then he got the shits and that, and then after a while of her yellin' and screamin' and stuff, he told me brother to take her home. Q: Mmm. A: And then, oh, no, she was walkin' round the house and then she sat down on the chair. She was sort of cryin', sort of thing, mumblin' and stuff, and the, what was it? She went to sleep and then, like, we ate the cake and everything, 'cause we had to wait about 40 minutes or 35 minutes or somethin' for it to cook. And then after that, she was just, like, she was asleep on the lounge, and then me dad, after we'd eaten some, me dad told us to go to bed, and then me brother said, Don't touch her, and then me dad said, I'm not goin' to touch her. And then we went into the bedroom and then we heard her yellin' and screamin', Don't touch me, 'cause, but she was on the lounge, and me dad's goin', Come on, get up and get in the bed. And she said, I don't want to get in the bed. And then me dad said, You can't sleep here all night, and then she said, Yes, I can, she said, and he goes, Well, you're not, and he goes, she goes, Yes, I am. And then he tried carryin' her into the bed and then he was, she was yellin', Don't touch me, leave me alone, and me dad yelled out to me brother, NB, and then he, what was it? He went and helped him take her into the bed. Oh, no, first he was sayin', Dad, don't touch her, and then he goes, I'm not touchin' her, I'm tryin' to put her into the bed, and then, so me brother went and helped him after me dad had called out to him to come and help. And then, yeah, and then they got her on the bed and then me dad got on the bed and then we was in there and then all we could hear was her yellin' and screamin', Don't touch me, and, I'm goin' to have you up for rape, and everything. And then me brother was goin', sayin', Don't touch her. And then me dad said, I'm not, you can come and turn the light on if you want. And then me brother was doin' it, he did it a couple of times. He just kept flickin' it on and off. He kept doin' that a few times. And then me brother, he sort of stayed on the lounge for a little while and then he heard her screamin' again so I ran up and flicked the light on and then was he come, she got up and was walkin' round the house again and yelling out, Where's the door? And then me dad got sick of it and so he said, NB, take her home. And then, so he took her to the door and then she just walked home and me brother watched her walk across the road to where she was stayin', and then that was it, basically. We just went back to bed and went to sleep." 24 MB said that he did not hear the appellant offer the complainant money for sex but he had heard his father say other things such as "do you want to play turkeys, I'll be the turkey and you do the gobblin'" and "do you want to play lions and tigers? You be the lion and I'll feed you the meat." MB gave evidence that he knew what occurred during the sexual act between humans. 25 MB said he saw the appellant pour a glass of rum and coke for the complainant. He said that about half the glass was rum and the rest was diet Coke. He gave evidence that "me dad was tryin' to get her drunk. He said, when she went over there to take the dogs home, he said, I'm goin' to get her drunk and I'm goin' to root her." 26 MB said that a minute or two after consuming the drink prepared by the appellant the complainant "crashed out" and the appellant and his brother got her onto the bed. He said the appellant started to pull the complainant's pants down and his brother was hitting him to stop him but the appellant kept pulling them off and then the appellant pulled off NB's pants and NB then had intercourse. MB said he was standing at the end of the bed and he could see what was happening. He said that his brother and the complainant still had their shirts on. He said that the complainant had said "Oh, that's good." He said she was "not moving much at all, she was almost knocked out but was still talking." 27 MB said he was frightened at the time. His father had said "you tell anyone and I'll kill you." When asked whether he thought the complainant was participating in the sexual act he said "nuh-uh. Not really. She didn't want me father to do nothin' to her, like, she was yellin' and screamin' to, tellin' him to get off her." 28 MB said that he thought his dad would "belt the shit out of him" if he let anyone know what was happening. He said that the appellant had belted him before and would zap the boys with a cattle prod. He said that the appellant had a gun in the cupboard in his bedroom for which he had made a silencer. 29 MB said that he had cleaned up most of the complainant's vomit and the next morning the appellant had made him and his brother scrub the floor in the appellant's room with disinfectant. He said that his brother and the appellant had taken the complainant's clothes off her and then he put her shorts and shirt in the washing machine. 30 MB also gave oral evidence and was challenged in cross-examination. It was suggested to him that he had made up the story to "get his father out of the picture." He did agree that he hated his father and said that "I hated him at the time for what he had done." He said that his father was drunk on that night and could barely stand up. 31 The complainant was referred from Narrabri Hospital to the sexual assault clinic in Tamworth. She was examined by Dr Croker who said the complainant appeared tired with blood shot eyes, her hair was messed up and matted with vomit and her hands and feet were dirty. She found a red substance in both external ear canals that could have been blood and a lesion consistent with oral suction on her neck and right breast. Dr Croker took both a low vaginal swab and a high vaginal swab. She said that her examination of the complainant was consistent with the complainant having had sexual intercourse the night before. 32 Dr David Lee was a pathology technician at Royal Prince Alfred hospital in Sydney. He tested a sample of the complainant's blood but did not detect Diazepam or Nordiazepam which results from the ingestion of Diazepam. His laboratory used gas chromatography. Blood may also be tested by liquid chromatography mass spectrometry. He said that the equipment he used was less sensitive than the more modern equipment which, since testing the complainant's blood, he had commenced using. 33 Mr Lee was aware that the Division of Analytical Laboratories detected 0.02 milligrams per litre of Diazepam and 0.01 milligram per litre of Nordiazepam in the blood sample. Less than .1 milligram per litre of Nordiazepam was lower than the detection limits of the detection equipment he used, although 0.2 milligrams per litre of Diazepam should have been within the range of his equipment. He explained the fact that his equipment had not detected Diazepam as being due to a loss of sensitivity in his equipment and natural variation in testing samples. He said that although laboratories analyse the same specimens they do not analyse the same actual goblets of blood and because of this there can be slight variations in their findings. When cross-examined he said that he had become aware that his machine was losing sensitivity when he had compared it with the results from other laboratories. 34 Mr Glyn Hanson from the Division of Analytical Laboratories at Lidcombe gave evidence that the laboratory had detected 0.02 milligrams per litre of Diazepam and 0.01 milligrams per litre of Nordiazepam in the complainant's blood. He said that his laboratory used liquid chromatography mass spectrometry. He said that each time they did an analysis they ran quality control samples which checked that their machine was functioning accurately. 35 Mr William Allender is a forensic pharmacologist with the police service. He said that Diazepam belonged to the drug group benzodiazepines which have anti-convulsive muscle relaxant and amnesic properties. They cause drowsiness, sedation and ataxia. The symptoms are exacerbated by other central nervous system depressants such as alcohol. He was aware that the complainant reported having no memory at all for a period of some hours following the taking of the drug. He was of the opinion that the complainant's reported symptoms were characteristic of a person who had taken benzodiazepines. He said it was also consistent with the ingestion of benzodiazepines that the complainant was unable to walk and had to be carried by two people to a bed. 36 He said that Diazepam would not fizz if placed in water but it would if placed in a carbonated drink, such as diet Coke. Although he had reservations about the accuracy of a back calculation of the drug dosage his best estimate was that having regard to the later blood tests the complainant had received a dose of 5 milligrams of Diazepam. 37 Evidence was also given by a scientist from the Division of Analytical Laboratories at Lidcombe, who had analysed the DNA of the buccal swab from the appellant. Ms Franco visually identified sperm in the complainant's vulval smear and a chemical test indicated that sperm was present in an extract from the combined low and high vaginal smears. The DNA recovered from the sperm in the vulval smear had the same DNA profile as the DNA profile which is expected to occur at the frequency of 1 in 1500 million of the appellant's buccal swab. Although the DNA of the complainant was also identified the presence of the DNA of another male contributor other than the appellant could not be confirmed. A buccal swab was also obtained from NB and the same DNA testing procedure was carried out to identify his DNA profile. The analysis showed that NB could not have been a male contributor. Similarly, the analysis ruled out that the DNA on the vulval and vaginal swabs could have originated from Fiona Golding (mother of NB and MB) based on her buccal swab. Although no buccal swab was taken from MB, assuming that he is the biological offspring of Fiona Golding and the appellant, from whom buccal swabs were taken, the available genetic information allowed MB to be excluded as a DNA source from the vulval swab. However, in respect of the vaginal swabs, the best Ms Franco could conclude was that it was "unlikely" that MB was a DNA source, since there was no indication of a third contributor (other than the appellant and complainant) and there was only a small amount of male DNA present in the vaginal swab testing sample. 38 Professor Christie, Professor of Pharmacology at the Royal North Shore Hospital was called in the appellant's case. He gave evidence that in his opinion it would take a relatively large dose of benzodiazepine to render someone unconscious for four hours. He believed that a dose of at least 10 milligrams would be necessary. He believed from the later analysis of the complainant's blood that the complainant had consumed less than 5 milligrams of Diazepam which he thought unlikely to make a person fully unconscious. They may be drowsy and fall asleep and suffer a loss of gross motor control. He also accepted that benzodiazepine had an amnesic effect but said he would not expect profound amnesia until doses above 10 milligrams. 39 Professor Christie said that he believed that a blood alcohol reading of 0.2 grams per 100 millilitres would be necessary to render someone unconscious for 4 hours. He noted that alcohol also produces amnesia, where the person would experience black outs and form no memory of them. He said that the effects of alcohol on a 14 year old girl would be more profound and would begin to be observable at blood alcohol concentrations lower than 0.2. He accepted that the combined effect of benzodiazepine and alcohol was "essentially additive." 40 When cross-examined Prof Christie accepted that if the complainant ingested a glass of liquid which was one-third full of rum she would consume five standard drinks. If consumed in a short time he believed the complainant would be affected very quickly and become profoundly intoxicated. He accepted that Diazepam had a combined effect with alcohol and if the complainant was still functioning after five standard drinks, the addition of 5 milligrams of Diazepam would have rendered her helpless. He accepted that within half an hour the complainant would have been unable to walk, would have appeared to have been almost unconscious, but would have been able to protest from time to time. He accepted that the complainant vomiting was consistent with the consumption of five standard drinks in a short period of time.

The grounds of appeal 41 There are seven grounds of appeal.

Ground 1 - the trial miscarried Ground 2 - the trial was a nullity 42 The appellant submitted that the indictment dated 15 November 2005 which was presented to the court in the presence of the jury panel on that day was invalid. It was submitted that because the indictment dated 2 September 2005, whereby the appellant was jointly charged with his son in relation to the second count, continued to exist, with the consequence that there was more than one indictment, the trial was fundamentally flawed. Reference was made to R v Landy [1943] VLR 73; Munday v Gill (1930) 44 CLR 38 at 87; R v Tagaras (NSWCCA, unreported, 9 April 1974) and R v Howard (1992) 29 NSWLR 242 at 247-248. 43 Section 130 of the Criminal Procedure Act 1986 (NSW) provides that the court has jurisdiction with respect to the conduct of proceedings on indictment "as soon as the indictment is presented and the accused person is arraigned" (s 130(2)). Section 20 provides for the amendment or substitution of an indictment which has been presented. After presentation it may not be amended except by the prosecutor (a) with the leave of the court, or (b) with the consent of the accused. Section 21 provides for amendment of a defective indictment and for separate trials and postponement of the trial. Section 22 provides for the recording of an order amending an indictment and is in the following terms: "(1) If any indictment is amended, a note of the order for amendment is to be endorsed on the indictment, and the indictment in its amended form is to be treated as the indictment for the purposes of the trial and all proceedings in connection with or consequent on the trial.

(2) Any verdict or judgment given after the amendment of an indictment is to have the same force and effect as if the indictment had originally been in its amended form.

(3) If it is necessary at any time to draw up a formal record of an indictment, the record may be drawn up in the words and form of the amended indictment, without notice of the fact of the amendment." 44 Section 129 of the Act provides that an indictment is to be presented within 4 weeks after the committal of an accused at the trial, "except as provided by this section" (s 129(2)). The time for presentation of an indictment may be extended by regulation or order of the relevant court (s 129(3)). Subsection 129(4) of the Act provides for the continuation of a trial even when an indictment has not been presented within the time required by the section. 45 For the purposes of s 129(3), extensions to the time within which the indictment is to be presented are provided for by the District Court Rules 1973 (NSW). Clause 10D of Part 53 permits an indictment to be presented by filing a copy of it with the registrar and then serving a copy on the accused or their legal representative within 14 days of filing. Presentation of the indictment by filing must still comply with s 129(2) of the Act within 4 weeks after the committal. However, Clause 10E of Part 53 extends the time to 8 weeks after the committal. 46 The appellant submitted that there were two deficiencies of fundamental significance in the present case. Firstly, it was submitted that the indictment on which the appellant was tried was not the original indictment and was not presented pursuant to any order allowing for its amendment. Furthermore, it was submitted that it was presented out of time and no order as contemplated by s 129(4) of the Act was made. 47 It was suggested that the indictment upon which the appellant was tried was presented in order to overcome the difficulties created by the fact that the appellant's son NB had pleaded guilty to the second count. This would seem to be a likely explanation. It was apparently recognised by the prosecution and, in the absence of any protest or contrary submission by counsel for the appellant, accepted on his behalf, that if an indictment which included the second count in its original form was presented, the jury would inevitably be alerted to the fact that the appellant's son NB had pleaded guilty. This may have had the effect of prejudicing the appellant's trial. As the charge could be reformulated without any reference to the appellant's son NB this was considered by all concerned to be the appropriate course to take. 48 The appellant is correct in his submission that there is no record that the court granted leave to amend the original indictment. However, s 20(1)(b) provides that an indictment may be amended with the consent of the accused. The appellant's counsel at the trial gave evidence before this Court but he has no recollection of the sequence of events. This trial was conducted over a number of days and the appellant pleaded to each of the counts in the indictment. There was not the slightest suggestion that he did not consent to being tried on that indictment. In these circumstances I am satisfied that the appellant's consent to the substitution of the new indictment is to be implied for the purpose of s 20(1)(b) of the Act. Subsection 20(3) provides that an amendment to an indictment includes the substitution of an indictment (see R v Taylor [2003] NSWCCA 194 [155]; R v Sepulveda [2003] NSWCCA 131 [33]). The appellant was not prejudiced by the presentation of the fresh indictment, indeed it was prepared for his benefit and I do not consider that any irregularity has occurred which could vitiate his trial. 49 I understand that the process followed in this case is the common practice in the District Court where, by reason of circumstances which arise after an indictment has been presented, it is necessary to prepare a fresh indictment. Rather than deal with the matter informally as happened in this case, where an accused pleads to a fresh indictment the court should ensure that the procedure provided by the statute is followed and, if necessary, leave is granted and consequential orders made. If this course is taken the controversy identified in the present case will be avoided. 50 To my mind the appellant's argument directed to s 129(4) should be rejected. Although the court may "take such other action as it thinks appropriate in the circumstances of the case" s 129(4)(c), s 129(4)(a) provides that the trial may proceed even if the indictment has been presented but not within the relevant time and thus not in compliance with s 129(2) and s 129(3) of the Act or cl 10D and Cl 10E of the District Court rules. 51 Furthermore, in my opinion the decisions referred to by the appellant do not require a different conclusion. In each of those cases the problem arose from the indictment presented to the jury. It was not authorised in R v Janceski (2005) 64 NSWLR 10 and there were multiple indictments in Munday. In the present case the substituted indictment was presented to the jury and he was tried on that indictment. There was no injustice occasioned to the appellant and the trial was not affected by any fundamental defect.

Ground 3 - the trial judge misdirected the jury in respect of the second count in the indictment 52 The appellant's submission was that the directions by the trial judge in relation to this count "hopelessly confused" the jury as to the matters which they were required to find in order to convict the appellant. The count required directions in relation to the liability of an accessory and were of necessity complicated. Before they could convict the appellant the jury had to be satisfied, inter alia, that his son, NB, had sexual intercourse with the complainant without her consent and with knowledge that she did not consent, she being then under the age of 16 years, namely 14 years. 53 In the course of the summing-up his Honour said: "The second charge, members of the jury, in this charge the Crown does not seek to prove that the accused himself committed the crime of sexual intercourse without consent in circumstances of aggravation. On the second count the Crown alleges that the accused was aiding and abetting in the commission by the principal offender, [NB], of that offence. An aider and abetter is a person who is present at the time when a crime is committed by another person and who intentionally aids or gives encouragement to that other person in the commission of that crime. The law regards such an aider and abetter as just as guilty of the crime as the person who actually commits it. The mere presence of the accused at the scene of the crime is not sufficient to make the accused an aider and abetter, it must be shown that there was also intentional aid or encouragement to that other person, in this case, [NB], in the commission of the crime. Such encouragement is established if the Crown satisfies you beyond reasonable doubt that the accused was both present and ready to give aid to the person, [NB], who was actually committing the crime. Such readiness to give aid if required amounts to an encouragement to that other person to commit the crime and makes the accused an aider and abetter and as equally as guilty of the offence. First of all of course you must be satisfied that the crime of sexual intercourse with [the complainant] without her consent, knowing that she did not consent thereto in circumstances of aggravation, she then being under the age of 16 years, namely 14 years, that that offence was committed by [NB] before you can be satisfied that the accused was an aider and abetter to the commission of that offence. If the Crown has satisfied you that the crime was committed, you must then consider whether at the time when that crime was being committed the accused himself was both present and intentionally gave either aid or encouragement to its commission by [NB]. Before you could find that the accused intentionally gave either aid or encouragement in the commission of the crime, you must be satisfied beyond reasonable doubt that the accused knew all the essential facts or circumstances that have to be proved by the Crown to show that the crime was committed by the principal offender. The intention to assist or encourage must be based on the accused's knowledge of the essential facts. The Crown relies on various matters in support of the allegation that the accused gave aid and encouragement to [NB]. Amongst other things, that the accused , together with [NB], carried the complainant to the bedroom of the house, that the accused helped to remove [NB's] pants as well as the complainant, [the complainant's], pants. He was present and encouraging [NB] to have sexual intercourse with the complainant, knowing that it was against her will, that the complainant was not capable of giving consent, of which the accused well knew. In short then, to establish this offence on the second count, the Crown must prove beyond reasonable doubt the commission of the offence by the principal offender, [NB], the presence of the accused at the time the crime was committed; and thirdly, that the accused knew all the essential facts or circumstances necessary to show the crime was committed by the principal offender, [NB], and fourthly, that with that knowledge he intentionally assisted or encouraged [NB] to commit the crime. For you to be satisfied that the principal offender, [NB], committed the crime, the Crown must prove each of the following elements beyond reasonable doubt. Firstly, that the person, [NB], had sexual intercourse with the complainant; secondly, that sexual intercourse occurred without the consent of the complainant; thirdly, that [NB] knew or was reckless to the lack of consent of the complainant to the sexual intercourse; and fourthly, the complainant was under the age of sixteen, namely fourteen. Firstly, in relation to the first element, that [NB] had sexual intercourse with the complainant. Sexual intercourse is defined in law as being a sexual connection occasioned by the penetration to any extent of the genitals of a female person by any part of the body of another person. Consequently, the penetration of the vagina by the penis of another person would constitute an act of sexual intercourse. The Crown does not have to prove that full penetration occurred, nor does it have to prove that the accused ejaculated. The second element is that sexual intercourse occurred without the consent of the victim. It should be noted that [NB] does not have to prove that the complainant consented, it is for the Crown to prove that she did not. Consent involves conscious and voluntary permission by the complainant to engage in sexual intercourse. It can be given verbally or it can be expressed by actions. Similarly, absence of consent does not have to be in words. The law specifically provides that a person who does not offer actual physical resistance to sexual intercourse is not, by reason only of that fact, to be regarded as consenting to the sexual intercourse. Thirdly, that the accused knew of the lack of consent. The Crown must prove to you beyond reasonable doubt that [NB] knew that the complainant did not consent. This is a subjective and not an objective test, that is, it is not what you or a reasonable person knew, it is whether [NB] in his mind knew that she did not consent. You might ask how, in the absence of an admission by the accused or by [NB], if the Crown can prove that he was aware that she did not consent. The Crown asks you to infer from the facts that she did not consent. The Crown asks you to infer from all of the facts which she has set out to prove that he, [NB], must have known, that he indeed did know that she was not consenting. In a situation where the complainant does not in fact consent, the accused's state of mind at the time of the act of sexual intercourse might be that he actually knew that she was not consenting. This is a guilty state of mind. If the Crown satisfies you beyond reasonable doubt that that was the state of mind of [NB] at the time of the act of intercourse, then that element has been made out. On the other hand, [NB's] state of mind might be that he honestly, though wrongly believed the complainant was consenting to intercourse. This is not a guilty state of mind. It is for the Crown to prove that [NB] had a guilty mind so that if the Crown has failed to prove that at the time of intercourse, if the accused did not honestly believe that she was consenting, then you would have to say that the third element of the offence is not made out, and return a verdict of not guilty. Between the two situations I explained to you, being on the one hand the knowledge of [NB] that she did not consent - on the other hand, and honest though mistaken belief that she did consent - there lies a third possibility, that is whether [NB] was reckless as to whether she was consenting or not. If the Crown has, in your opinion, established beyond reasonable doubt that the [NB] had sexual intercourse with the complainant and he was reckless as to whether she consented to that intercourse, then in law the accused will be taken to know that she did not consent to the sexual intercourse. In order to establish that the accused was acting recklessly, the Crown must prove beyond reasonable doubt either (1) [NB's] state of mind was such that he simply failed to consider whether or not she was consenting at all and just went ahead with the act of sexual intercourse, notwithstanding that a risk that she was not consenting would have been obvious to someone with his mental capacity, if he had turned his mind to it; or secondly, [NB's] state of mind was such that he realised the possibility that she was not consenting, but went ahead regardless of whether she was consenting or not. The fourth element of the offence is in circumstances of aggravation, that is [the complainant] then being under the age of sixteen years, namely fourteen years. Circumstances of aggravation are defined in law. They include the fact that the complainant is under the age of sixteen years. In this case there is no dispute that she was in fact under that age. Members of the jury, in relation to that second count, there is an alternative verdict open to you on that count. It is not contained in the indictment, but as a matter of law there would be an alternative verdict open to you, that is, if you were not satisfied of the guilt of the accused in relation to any aspects of the charge on the second count, it would be open to you to reach an alternative verdict, that is a verdict to a lesser offence, namely that any person who has sexual intercourse with another person who is of or above the age of ten years and under the age of sixteen years is guilty of an offence. That is, the elements of this offence are that [NB] had sexual intercourse with [the complainant], that she was then between the ages of ten and sixteen and that the accused was encouraging, aiding and abetting [NB] to have sexual intercourse. That means, of course, that the element of consent is not an issue in that charge. The consent of the complainant is no defence to a charge under that section. I hope I have made that clear. It is really referring to the charge which has commonly been known as carnal knowledge, so it does not involve a matter of consent, so the facts, if you were not satisfied under the second count, you could proceed to consider that alternative verdict, that is that - if I could just repeat that, that [NB] had had sexual intercourse with [the complainant] and that the accused aided and abetted him in having that sexual intercourse." 54 The appellant does not complain about the explanation which his Honour gave the jury of the criminal liability of an aider and abetter. Furthermore, he does not complain about his Honour's identification of the factual elements which the Crown relied on. The appellant's complaint arises from his Honour's reference to the "accused" in the various paragraphs which I have set out above and where the word "accused" has been underlined. 55 His Honour is careful when introducing this aspect of the summing up to separate the actions of the son, [NB], from those of the appellant. His Honour referred to the appellant's son "as the principal offender" and said that the Crown must prove that he committed the crime which comprised four elements. His Honour then proceeds to discuss each of those elements and relates them to the circumstances of this case. The reference to the "accused" in the paragraph commencing "thirdly" is followed by a direction that the Crown must prove that NB knew the complainant did not consent. I am satisfied that the jury would have understood the reference to the accused as a reference to the appellant. The reference to NB was of course a reference to his son. No confusion could arise. 56 The next reference to the "accused" is made when NB is referred to in the alternative. Again, no confusion could arise. 57 The third reference to the "accused" is to the "accused's state of mind" and his Honour explains that he is speaking generally. He then refers to the state of mind of NB. No confusion could arise. 58 The fourth reference to the "accused" occurs as part of the same discussion and his Honour distinguishes the mind of NB from the belief of the appellant. The fifth and sixth references to the accused also occur in sentences where his Honour makes plain that he is referring to the appellant distinguishing findings in relation to him from the findings which must be made in relation to the knowledge and conduct of NB. 59 The references to the "accused" in the final passage of the directions which I have included are without ambiguity. 60 I am satisfied that this ground of appeal is not made out.

Ground 4 - the trial judge misdirected the jury in respect of the first count in the indictment "The first offence is that on 9 October 2004 it is alleged that a Narrabri in the State of New south Wales, the accused did unlawfully cause TE to take an over-powering drug, Diazepam, with intent to enable himself to commit an indictable offence, namely sexual intercourse without consent. The elements of this offence which must be proved beyond reasonable doubt before the accused can be found guilty are: (1) The accused unlawfully applied, administered or caused to be taken a substance; (2) Which was an overpowering drug or thing to the complainant, TE; (3) The accused intended to enable himself, the accused, or some other person to commit an indictable offence, namely sexual intercourse without consent. Those are the four elements. Members of the jury, an overpowering drug or thing is not defined in this charge, however, the term 'overpowering' ordinarily means to make helpless or ineffective." 61 Count 1 in the indictment alleged that the appellant caused the complainant to take the Diazepam with intent to enable himself, ie the appellant, to commit an indictable offence. Accordingly, the reference which his Honour made to "some other person" to commit sexual intercourse without consent was erroneous. Although the Crown relied in relation to the second count on the appellant having been an "aider and abetter" this was not relevant to the first count. 62 Notwithstanding that this error occurred, I do not believe it was of significance. When convicting the appellant on count 1 the jury must have accepted that the appellant gave the complainant the diet Coke and rum drink after he had placed Diazepam in it. They must also have accepted that after the drink had taken effect the complainant was taken into the bedroom by the appellant and NB and was sexually assaulted by both males. The drug could only have been administered by the appellant with the intention of minimising the complainant's resistance to sexual intercourse. 63 In convicting the appellant on count 2 the jury must have accepted that the appellant aided and abetted NB to sexually assault the complainant, an offence which occurred prior to the sexual assault alleged in count 3. In these circumstances, even though count 1 did not refer to a person other than the appellant, the jury must have accepted that when NB sexually assaulted the complainant she was under the influence of the drug administered by the appellant. Accordingly, the elements comprising the first count must have been found by the jury.

Ground 5 - trial judge misdirected the jury on intoxication 64 The trial judge did not initially direct the jury in relation to intoxication. He was requested to do so by counsel for the appellant. In response to that request his Honour said: "Secondly, in relation to the first count, that count as you know involves a question of specific intent. On the defence case there was evidence that the accused was intoxicated - I think that is really a question of fact. If you thought he was so intoxicated and affected, you may take that into consideration as to his intent to carry out that offence." 65 Counsel for the appellant did not ask for any further direction and accordingly rule 4 of the Criminal Appeal Rules applies. 66 It was submitted on the appeal that the directions were wrong and rather than being confined to the first count his Honour should have referred to intoxication as being relevant to each count. It was further submitted that his Honour erred in apparently suggesting that "specific intent" was only relevant to the first count. Furthermore, it was submitted that his Honour should have brought home to the jury the effect of intoxication on the appellant's appreciation as to NB's understanding of whether the complainant was consenting as well as his own understanding. It was submitted that his Honour should have referred to the evidence of the appellant's drinking and evidence from MB that the appellant was so drunk that he could hardly stand up. 67 Section 428C provides that intoxication, whether self induced or otherwise, may be taken into account in determining whether the accused intended to cause the result necessary for an offence of specific intent. An offence against s 38 of the Crimes Act, which constituted count 1 is an offence of specific intent (see the table to s 428B(2)(a)) and accordingly, intoxication may have been relevant. However, s 428C(2)(a) excludes evidence of intoxication where a person resolves to do the relevant act before becoming intoxicated, which the evidence suggests occurred with the appellant. 68 Counts 2 and 3 are not offences of specific intent. They are not included in the table and do not otherwise involve an intention to cause a specific result (s 428B(1)). Accordingly, leaving aside s 428C(2)(a) a direction in relation to intoxication was not required. 69 Even if the appellant was correct in the criticisms made of his Honour's directions, I do not believe they have led to a miscarriage of justice. Notwithstanding the evidence that the appellant was drunk, the evidence of his actions do not admit of the possibility that he did not appreciate that the complainant was not consenting to sexual intercourse. 70 As I have already indicated the sequence of events commenced with the appellant making lewd suggestions to the complainant including asking for sex in return for payment. There was evidence that he said to MB "I am going to get her drunk and root her." The appellant purchased rum and gave the complainant a significant quantity of it, included Diazepam and encouraged the complainant to "scoll" the drink. The evidence was that soon after taking the drink the complainant was for all purposes "unconscious." She was quite simply unable to consent to or resist the sexual advances of the males. 71 The appellant and NB then carried the complainant to the bedroom, placed her on the bed, where the appellant removed NB's pants and the complainant's pants. NB made advances on the complainant and had intercourse with the complainant with the appellant present near by. The appellant then pulled NB away and proceeded himself to have intercourse with the complainant. The evidence was that he later told MB that he had "blown his load." Later the appellant warned MB not to tell anyone what happened "'cause it's 25 years' gaol." He also caused MB to put the clothes of the complainant in the washing machine. 72 In these circumstances I am satisfied there was no reasonable possibility that NB believed that the complainant was consenting to intercourse with him or the appellant thought that NB had that belief. Nor was there any reasonable possibility that the appellant believed the complainant was consenting to having sexual intercourse with him. 73 I would reject this ground of appeal.

Ground 6 - the appellant was prevented from properly testing the evidence 74 The appellant complained that counsel at his trial was unreasonably restrained by the trial judge and prevented from fully exercising his rights of cross-examination. The specific complaints related to: · the witness MB denied that he had been accused by a friend of spiking his drink and volunteered that he had never spiked anyone's drink. The judge rejected the specific question of the witness as to whether he had on another earlier occasion spiked another person's drink; · the witness MB admitted that he had been asked questions by his mother about having a pornographic movie at home but denied it was his. The trial judge ruled that he would reject questions of the mother in relation to her son's possession of pornographic material; · the witness MB denied that he had continued to hear voices. The trial judge rejected further questions of his mother as to telepsychiatry and his hearing voices; · MB denied that he had stolen medication and the trial judge rejected questions of his mother to the effect that she had been informed by the police that he had stolen medication; · the trial judge ruled that he would not compel the Crown to call the witness LB, the appellant's mother, for the purpose of establishing a false complaint by MB; 75 There is no substance in these complaints by the appellant. In my view his Honour was correct in confining the questioning as he did. There was nothing in the evidence to suggest that MB was involved in any of the offences. The question in relation to the spiking of the drink was bad in form and rightly rejected. I see no significance in exploring the question of whether MB had access to pornographic material. The jury were able to observe MB both on video and at length in cross-examination and were accordingly able to assess his reliability and credibility. 76 In my opinion his Honour rightly confined the cross examination to matters relevant to the issues in the trial. 77 I would reject this ground of appeal.

Ground 7 - the conviction of the appellant on the second count was unreasonable 78 The appellant submitted that there was no objective evidence that NB had sexual intercourse with the complainant. No DNA of NB was located on her and the complainant said she had no recall of it having happened. In fact she believed that it did not happen. The evidence of these events came from MB. 79 It was further submitted that the evidence was consistent with consensual intercourse or at least a belief in NB that the complainant was consenting. Under cross-examination the complainant admitted that she knew NB was keen on her and was flirting with her. She admitted to a recollection of kissing NB. MB described his brother and the complainant as "going for it" and as "pashing" and said that when he saw them having sex he heard the complainant say things consistent with her enjoying it. The appellant also said that there was no evidence that NB was aware that the complainant had been supplied with a spiked drink. Finally, the appellant emphasised that the trial judge specifically left open the prospect of "conviction for consensual intercourse." It was submitted that the evidence of MB was entirely consistent with consensual intercourse having taken place. 80 In my opinion this ground of appeal fails. 81 There was ample evidence that MB understood the nature of an act of intercourse. He testified that both the appellant and NB had intercourse with the complainant. The vaginal swabs confirmed his evidence in relation to the appellant and it was for the jury to assess whether they would accept his evidence in relation to NB. 82 With respect to the question of whether the act of sexual intercourse was consensual it must be remembered that the complainant, if not unconscious, was barely conscious when she was carried into the bedroom by the appellant and MB. She was then undressed by the appellant and NB proceeded to have intercourse with her. If the jury accepted MB's evidence that intercourse took place, the fact that the complainant did not remember operates to support the Crown case that she did not consent. Apart from the noises which the complainant allegedly made in her seriously compromised condition there was nothing to suggest that she was consenting to intercourse with NB. It was for the jury to assess all of the evidence and I see no reason for this Court to intervene. 83 In my opinion a conviction on the second count was clearly open and I would dismiss this ground of appeal.

Supplementary matter 84 At the hearing of this appeal counsel for the appellant raised a concern as to whether two of the jurors empanelled for the appellant's first trial were empanelled for the second trial. The evidence at that stage suggested that because two of the jurors had the same number they were the same person. The matter was subsequently clarified by an affidavit from the officer in charge of Moree Sheriff's Office. None of the jurors at the second trial formed part of the jury panel for the first trial.

Order 85 In my opinion the appeal against the convictions should be dismissed. 86 In relation to the Crown appeal against sentence I agree with Price J. 87 HIDDEN J: I agree with McClellan CJ at CL that the conviction appeal should be dismissed, and substantially with his Honour's reasons. Ground three has caused me some concern. It is not clear to me that, in the course of his Honour's lengthy directions about accessorial liability, the term "accused" was always a reference to the appellant rather than his son. However, I am satisfied that the directions, read as a whole, adequately conveyed to the jury the basis upon which the appellant might be found guilty of the second count. 88 As to the Crown appeal against sentence, I agree with the orders proposed by Price J and with his Honour's reasons. An effective sentence of twelve years with a non-parole period of eight years is substantial but, in the circumstances of this case and in the light of the fact that offences under s 61J of the Crimes Act carry a standard non-parole period of ten years, it is inadequate. I acknowledge the breadth of the discretion of a sentencing judge to determine whether sentences should be served concurrently or cumulatively. However, as Price J has pointed out, partial accumulation of the sentence on the second count was called for in this case and it is his Honour's failure to do so which has led to the inadequacy of the overall sentence. 89 PRICE J: In relation to the appeal against conviction I agree with McClellan CJ at CL. The Crown also appeals pursuant to s 5D of the Criminal Appeal Act 1912 against the sentences imposed on the respondent in the District Court at Moree on 29 August 2006. The relevant facts are set out in the judgment of McClellan CJ at CL. It is necessary to restate only some of the essential matters. 90 The respondent was found guilty by a jury of twelve on each of three counts on the indictment. The first count is one of unlawfully causing TE to take an overpowering drug, Diazepam, with intent to enable himself to commit an indictable offence, namely sexual intercourse without consent. The offence being contrary to s 38 of the Crimes Act 1900 attracts a maximum penalty of imprisonment for 25 years. 91 The second and third counts are offences of aggravated sexual assault contrary to s 61J(1) of the Crimes Act. The circumstances of aggravation in each count was that TE was under the age of 16 years. The Crown case in the second count was that the respondent had aided and abetted his 14-year-old son, NB, to have sexual intercourse with the victim whereas it was the respondent who had the sexual intercourse in committing the third offence. An offence contrary to s 61J(1) attracts a maximum penalty of 20 years imprisonment. A standard non-parole period of 10 years is prescribed pursuant to s 54A and the Table to Division 1A of Part 4 of the Crimes (Sentencing Procedure) Act 1999. 92 The respondent was sentenced to concurrent terms of imprisonment for each offence which consisted of a non-parole period of 8 years commencing on 11 October 2004 and expiring on 10 October 2012 with a balance of term of 4 years expiring on 10 October 2016. A condition of parole is that the respondent accepts the supervision and control of the Probation and Parole Service and obeys all reasonable directions particularly in relation to drug and alcohol counselling. Four offences on a Form 1 were taken into account on sentence on the second count each of which was an offence contrary to the Firearms Act 1996, namely one offence of not keep firearm safely contrary to s 39(1)(A), one offence of possess unregistered firearm contrary to s 36(1), one offence of possess unauthorised firearm contrary to s 7(a)(1) and an offence of possess ammunition without holding a licence contrary to s 65(3).

Form 1 matters 93 These offences relate to a stirling model 14.22 calibre bolt action rifle with a mount master scope and man made silencer which was located by police in an unlocked cupboard in the respondent's bedroom.

Subjective circumstances 94 Evidence of the applicant's subjective circumstances was before the Judge by way of a pre-sentence report dated 13 December 2005 and a report of a psychologist Dr Nicholas dated 24 May 2006. The respondent did not give evidence during the sentencing hearing. The applicant's subjective circumstances are taken largely from these reports. 95 The respondent was born on 19 March 1964 and was 40 years old at the time of the commission of the offences. He told Dr Nicholas that he had been a chronic alcoholic, having begun drinking at the age of 14. He was a chronic binge drinker until he was 35 years of age. During this time he abused prohibited drugs, such as heroin and speed. When he was arrested he weighed 135 kilograms and at the time of the interview was 89 to 90 kilograms. He attributed his significant weight loss to an exercise routine and as a result his blood pressure had reduced significantly as had his cholesterol level. He is no longer a diabetic. The respondent had been on a disability pension most of which had been spent on alcohol. Dr Nicholas relates that the respondent on his own admission was gaining benefit from his time in custody and the period in custody had provoked a redefinition of his life style to one that he intends to be pro-social. He opined that the respondent "fully comprehended the highly irresponsible and inappropriate nature of his actions and expressed remorse about those actions". 96 Mr Mellor, the Probation and Parole officer, in his report states that the respondent had "maintained that the victim had misrepresented her age and claimed she was a consensual participant". He opined that the respondent "clearly attributed his actions to his alcohol abuse and did not appear to comprehend the inappropriate nature of his actions regardless of the victim's age". 97 In his sentencing remarks, his Honour summarised the respondent's prior criminal history as follows: "The offender's prior record discloses that he was first convicted in 1980 for stealing a motor vehicle, thereafter offences of malicious injury, further motor vehicle offences and stealing soon followed. In 1983 he was convicted of receiving and then in 1986 there were offences of offensive behaviour, resist arrest, mid range PCA and offensive behaviour again. He was also convicted of carnal knowledge in that year for which he was placed on a recognisance as he was then nineteen. I do not think that this bears much resemblance to these matters and I take little account of that. In 1987 he was convicted of assault and resist arrest, malicious injury and stealing. His record shows that he was first imprisoned in 1987 for break, enter and steal when he received fifteen months with nine months supervised parole, however I am now advised that in fact under appeal that resulted in a sentence of 150 hours community service order. He maintains he has not been sentenced to imprisonment previously, and that would appear to be correct, whilst there are periods in custody on remand. There were other offences of assault that year, further similar type offending following on a fairly regular basis for which he was mostly fined. In 1999 he was convicted and fined for consuming and diverting electricity and for stealing property in a dwelling house. His record therefore is one of fairly continual offending but not for particularly serious matters and not for anything on the scale of these offences. As I have said he appears not to have previously been imprisoned following any conviction."

The Crown Appeal 98 The Crown contends that the sentences imposed were manifestly inadequate, either individually or as a reflection of the respondent's total criminality. The Crown has identified what are asserted to be a number of errors made by the Judge.

Ground 1: The failure to impose sentences for two offences under s 61J in accordance with the standard non-parole period provisions of the Crimes (Sentencing Procedure) Act 1999.

The Judge was required to separately determine the term of imprisonment appropriate to each s 61J offence having regard to the circumstances of the offence and the circumstances of the respondent. He was obliged to determine whether each s 61J offence should be characterised as being in the mid-range of objective seriousness and to consider if there were other reasons in the matters identified in s 21A of the Crimes (Sentencing Procedure) Act 1999 (the Crimes (SP) Act) relating to the offender for departing from the standard non-parole period. His Honour was obliged to consider special circumstances: R v Way (2004) 60 NSWLR 168, MLP v Regina [2006] NSWCCA 271. These issues were not required to be addressed in any particular order: MLP [at 34], R v Moffit (1990) 20 NSWLR 114. Reasons were required to be provided for departing from the standard non-parole period: s 54B(4) Crimes (SP) Act. 99 His Honour was mindful that counts 2 and 3 carry a standard non-parole period of 10 years as he made reference to the standard non-parole period in his remarks on sentence. During the proceedings on sentence both the Crown and counsel for the respondent submitted that the s 61J offences were within the mid-range of objective seriousness of offences of that type. His Honour, however, did not disclose in his reasons whether he characterised the offences as being in the mid-range and it appears that he did not give consideration to making such an assessment. He collectively assessed all of the offences as being "gravely serious" (ROS at 4) which assessment included the first offence for which a standard non-parole period is not prescribed. His Honour's failure to consider in the case of each s 61J offence whether the offence should be characterised as being in the mid-range of objective seriousness did not accord with the principles established in Way. His Honour imposed non-parole periods for counts 2 and 3 which were eighty per cent of the prescribed standard non-parole periods for these offences. 100 A separate and careful consideration of counts 2 and 3 could not have reasonably led to the characterisation of these offences as falling below the mid-range of objective seriousness. The respondent initiated the sexual assault by his son, which constitutes the second offence. His active encouragement included removing the then helpless TE's pants and those of NB who was heavily intoxicated. Without the respondent, this offence would not have happened. Although he was to be sentenced as an aider and abettor, the respondent was dominant in the commission of the offence and his culpability was substantially more than that of his 14-year-old son. He then removed his son and commenced having sexual intercourse with the victim himself. It appears that he persisted in the sexual intercourse notwithstanding his victim's cries that he was hurting her.

101 The sentencing for the second offence included the taking into account of four matters on the Form 1. Each of these matters was an offence contrary to the Firearms Act. The Judge was entitled to take these matters into account so as to impose a longer sentence for count 2 than would otherwise have been imposed had it been the only offence: see Des Rosiers v R [2006] NSWCCA 16, Regina v Stankovic [2006] NSWCCA 229. 102 When sentencing the respondent, his Honour expressly took into account the offences on the Form 1. I am not persuaded that the Judge failed to properly take them into account. 103 There was little in the respondent's subjective circumstances which justified departing from the standard non-parole period. The mitigating factors identified by the Judge were remorse and the possibility of rehabilitation. 104 The Judge was entitled to have regard to the assessment by Dr Nicholas that the respondent "fully comprehended the highly irresponsible and inappropriate nature of his actions and expressed remorse about those actions". This assessment was founded on statements made by the respondent to the psychologist. 105 The respondent did not give evidence during the proceedings on sentence and the psychologist's report provided the only evidence of remorse. The Crown submitted that given that the respondent did not give evidence there was little to suggest that his expression of remorse was genuine or that it was worthy of significant weight. The Crown pointed to the unfavourable assessment of the respondent's remorse in the pre-sentence report. 106 The assessment by the psychologist was more favourable than the opinion expressed in the pre-sentence report. His Honour referred to each of the reports and to the conflicting assessments. Whilst it was a matter for the Judge to decide what weight should have been given to the statements made by the respondent to the psychologist, this Court has emphasised that very considerable caution should be exercised in relying upon them when evidence is not given by the prisoner: see R v Qutami (2001) 127 A Crim R 369 [at 39]. 107 In any event, I am not persuaded that the Judge attached significant weight to the respondent's statements of remorse when he said (ROS at 8): "……….I am prepared to accept that there are now some signs of remorse even though that is somewhat belated, and together with the awareness of his wrongdoing may harbour some prospects of rehabilitation." 108 His Honour's acceptance of remorse was cautious and restricted. It did not, however, provide a reason for significantly departing from the standard non-parole period. 109 The Judge found special circumstances and there is no criticism by the Crown of this finding. A finding of "special circumstances" may of itself provide a sufficient reason for departing from the standard non-parole period. 110 It is apparent, however, that the Judge dealt with the requirements of s 54B(4) of the Crimes (SP) Act in a cursory manner when he said (ROS at 8): "In relation to the two counts of aggravated sexual assault, I am of the view that the standard non parole period remains relevant even though I propose not to set it in this instant case. In my view the Court should exercise its sentencing discretion in accordance with established sentencing practice by reference to the matters identified in s 3A and 21A of the Sentencing Act. " 111 This statement by the Judge does not constitute an identification of the reasons for departing from the standard non-parole period as is required by s 54B(4). As was said in R v Mills (2005) 154 A Crim R 40 by Wood CJ at CL [at 49]: "……..more is expected than mere lip service to the legislation. What is required is a clear identification of the relevant factors, the weight to be given to them, and their role in the structuring of the sentencing order: see R v Walker [2005] NSWCCA 109." 112 Whilst the absence of sufficient reasons does not necessarily guarantee intervention by this Court: see Mills [at 51], the lack of reasons in the present case confirms, to my mind, the Judge's failure to correctly approach the sentences to be imposed for the two offences contrary to s 61J. This ground of appeal has been established. With respect to his Honour, the Judge failed to separately consider each of the s 61J offences in accordance with the principles established in Way.

Ground 2: The failure to treat as aggravating factors the planning of the offences in relation to each offence and the vulnerability of the victim in relations to counts 1 and 2. 113 The Crown contends that the Judge was wrong when he found in respect of counts 1 and 2 that the "vulnerability of the victim" was not an aggravating factor pursuant to s 21A(2)(l) of the Crimes (SP) Act. 114 His Honour said (ROS at 7-8): "I consider that the premeditation and planning of these offences and the vulnerability of the victim are elements of the objective seriousness of the offences themselves and I do not consider that there any aggravating circumstances pursuant to s 21A which are outside the elements of the offences themselves." 115 It is accepted by the Crown that the vulnerability of the victim due to her age was an element of the offence in count 3. The Crown asserts it was not an element of the offences in counts 1 and 2. This submission overlooks so far as count 2 is concerned that the indictment was amended. The pleaded circumstances of aggravation were changed from the respondent being in company with NB to TE being under the age of 16 years. As a consequence the vulnerability of TE because of her age was an element of the second offence. Her vulnerability was not, however, an element of the first offence and her age made her more susceptible to being administered with an overpowering drug. The vulnerability of TE because she was 14 years old was an aggravating factor to be taken into account in determining the appropriate sentence for count 1. 116 His Honour did not ignore the vulnerability of the victim. It was a factor which he clearly took into account as increasing the objective seriousness of the offences. In my view, the distinction that the Judge made between an aggravating circumstance and an element of objective seriousness had no material impact upon the sentences imposed. For this reason, it seems to me that it is unnecessary to consider whether the Judge was in error in finding that the planning of the offences was not an aggravating factor pursuant to s 21A(2)(n). The Judge found that "the offender carefully set out and planned to drug the victim in order to sexually violate her" (ROS at 5). The respondent's careful planning was plainly taken into account by the Judge as a factor which increased the objective seriousness of the offences.

Ground 3: The imposition of entirely concurrent sentences. 117 All the sentences imposed by the Judge are to be served concurrently. During the proceedings on sentence, counsel for the accused had conceded that "in respect to the first charge that there would need to be a degree of accumulation" (POS at 4). 118 When sentencing the respondent his Honour said (ROS at 8): "The first offence of administering a stupefying drug is a distinct offence to the two matters of aggravated sexual assault, and it is conceded that it would be appropriate that there be some partial accumulation imposed. However, I do consider that all of this offending is part of the one criminal activity and the two sets of offences are so connected in the one enterprise that the sentence imposed should in the circumstances be concurrent". 119 The Crown contends that the offences involved distinct acts of criminality and his Honour erred in concluding that the sentences should be wholly concurrent. The imposition of entirely concurrent sentences, the Crown argues, failed to reflect the criminality involved in the three offences. The respondent submits that the Judge's conclusion that all of the offending was part of one criminal activity was open to him and the sentences imposed reflect the total criminality. 120 As the Judge was sentencing the respondent for more than one offence, he was obliged to fix an appropriate sentence for each offence and then consider questions of cumulation or concurrence as well as questions of totality: Pearce v The Queen (1998) 194 CLR 610. The total sentence must fairly and justly reflect the totality of the offender's conduct: Veen v The Queen (No 2) (1988) 164 CLR 465. 121 Although there was one victim and a single episode of criminality that does not necessarily lead to the conclusion that concurrent sentences are to be imposed. In the present case, each offence of which the respondent was convicted concerned different conduct. The first offence involved the administering by the respondent of the drug Diazepan to TE so that he could have sexual intercourse with her when she had been rendered helpless. As I have mentioned the second offence involved aiding and abetting his son to have sexual intercourse with the victim whereas in committing the third offence the respondent for his own gratification sexually assaulted her. 122 There were in fact three separate offences committed even though they were all committed as part of the same episode. The concurrency of offences 1 and 3 does not acknowledge the separate harm caused to TE by the administration of the overpowering drug nor does it provide punishment for the respondent from moving on to the next step which was to sexually assault TE. 123 When considering a similar issue, Adams J in R v Ta (2003) 57 NSWLR 444 observed [at 34]: "……………… the deterrent effect of a slight accumulation, as proposed by the applicant, would be significantly eroded. Having administered the stupefying drug, the offender would then suffer little more punishment by moving to the next step and actually committing the intended or other sexual assaults." 124 Furthermore, the failure to accumulate the sentences at least partially does not in effect provide any punishment or deterrence for the second offence of which he was a dominant aider and abettor. The total effective sentence of 8 years with a balance of term of 4 years does not, in my view, fairly and justly reflect the totality of the offender's criminality. With respect, the Judge failed to take into account the differences in conduct the subject of each count and thereby erred in making each sentence concurrent.

Discretion 125 The principles relevant to Crown appeals against sentence are well established and are summarised in R v Wall [2002] NSWCCA 42. Considerable restraint is exercised by this Court in intervening in the orders made by the sentencing Judge. Even if error has been shown, this Court has a discretion to refuse to intervene, and in deciding whether to exercise that discretion, it should have regard to the double jeopardy that the convicted person faces as a result of a Crown appeal. Should the Crown appeal be successful, the sentence imposed is to be at the bottom of the permissible range. 126 The respondent contends that the sentences were not manifestly lenient and the sentences imposed were not outside an appropriate range. Should the Court find that the sentences were manifestly lenient, the respondent contends that the discretion not to intervene should be exercised. 127 I am not persuaded, as the Crown contends, that the sentences imposed for counts 2 and 3 were manifestly lenient. Although the Judge did not correctly approach the sentencing task for these offences, it was open to him to depart from the standard non-parole period by finding special circumstances. I am also not of the view that the sentence for count one was outside an appropriate range. 128 The failure by his Honour to accumulate, at least partially one or more of the sentences has resulted in a total effective sentence which is manifestly lenient. Notwithstanding the fact that the respondent has been in custody since 11 October 2004 and the double jeopardy he faces the Court, in my view, should intervene and re-sentence the respondent. I propose that the sentence for count 2 is to be partly accumulated on the sentence for count 1. The substituted sentence reflects, in my opinion, the least sentence that could have been imposed in the District Court. 129 I propose the following orders:

2. The commencement date and the expiration date which were fixed by the Judge in the District Court for count 2 be set aside.

3. In respect of count 2 the non-parole period of 8 years is to commence on 11 October 2006 and is to expire on 10 October 2014. The balance of term is to commence on 11 October 2014 and is to expire on 10 October 2018. 130 The effect of the foregoing is that the total effective sentence of imprisonment imposed on the respondent is a non-parole period of 10 years with a balance of term of 4 years. In accordance with the finding of special circumstances, the balance of term of the sentence exceeds one-third of the non-parole period. 131 The earliest date that the respondent will be eligible for release to parole is 10 October 2014.

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