HA v R - [2023] NSWCCA 274 - NSWCCA 2023 case summary — Zoe

NSWNSWCCA

HA v R

[2023] NSWCCA 274

Court of Criminal Appeal (NSW)|2023-09-13|Before: Stern JA, Harrison J, Adams J

View original source

At a glance

Source facts

Court

Court of Criminal Appeal (NSW)

Decision date

2023-09-13

Before

Stern JA, Harrison J, Adams J

Catchwords

(2007) 168 A Crim R 41 Collins v R [2020] NSWCCA 198 Cordeiro v R [2019] NSWCCA 308 Dansie v R (2022) 274 CLR 651
[2022] HCA 25 DH v R [2022] NSWCCA 200 DL v R (2018) 265 CLR 215
[2018] HCA 32 Ganiji v R [2019] NSWCCA 208 KBT v The Queen (1997) 191 CLR 417
[1997] HCA 54 Kentwell v The Queen (2014) 252 CLR 601

Source

Original judgment source is linked above.

Catchwords

(2007) 168 A Crim R 41 Collins v R [2020] NSWCCA 198 Cordeiro v R [2019] NSWCCA 308 Dansie v R (2022) 274 CLR 651[2022] HCA 25 DH v R [2022] NSWCCA 200 DL v R (2018) 265 CLR 215[2018] HCA 32 Ganiji v R [2019] NSWCCA 208 KBT v The Queen (1997) 191 CLR 417[1997] HCA 54 Kentwell v The Queen (2014) 252 CLR 601[2014] HCA 37 Kilby v R [2023] NSWCCA 247 M v The Queen (1994) 181 CLR 487[1994] HCA 63 MacKenzie v The Queen (1996) 190 CLR 348[1996] HCA 35 McKinnon v R [2020] NSWCCA 106 MFA v The Queen (2002) 213 CLR 606[2002] HCA 53 Noonan v R [2021] NSWCCA 35 NW v R [2023] NSWCCA 134 R v Markuleski (2001) 52 NSWLR 82[1981] HCA 31 TK v R (2009) 74 NSWLR 299

Judgment (19 paragraphs)

[1]

[2]

HEADNOTE [This headnote is not to be read as part of the judgment] The applicant was tried before a Judge and a jury in the District Court for nine counts of offending against the same complainant, who was the younger sister of the applicant's wife. The first incident (counts 1-2), the second incident (counts 3-4), the third incident (count 5) and the fourth incident (count 7) were charges of sexual intercourse with a person under 10 years of age, contrary to s 66A(1) of the Crimes Act 1900 (NSW) (as in the force at the time of offending). Counts 6 and 8 were both aggravated acts of indecency towards a person under the age of 16. Count 9 was a charge of stalk or intimidate with intent to cause fear of physical or mental harm. The applicant pleaded not guilty to each charge. The jury convicted the applicant on counts 3 and 4 and acquitted him of all other counts. In the sentencing proceedings, the Crown submitted that an aggravating factor, pursuant to s 21A(2)(k) of the Crimes (Sentencing Procedure) Act 1999 (NSW), was that the applicant abused a position of trust or authority in relation to the complainant. At the time a circumstance of aggravation elevating an offence contrary to s 66A(1) of the Crimes Act to the aggravated offence under s 66A(2) was that the victim was under the authority of the offender. In the context of considering the objective seriousness of the offending, the sentencing judge remarked that she had had regard to the applicant's position of trust and the special relationship between the applicant and the complainant and also to the fact that the complainant was under the applicant's authority at the time of the offending. Her Honour found that these were both aggravating features albeit that there was an overlap between them. The applicant was sentenced on each of counts 3 and 4 to concurrent terms of 9 years imprisonment, with a non-parole period of 5 years and 6 months. The applicant sought leave to appeal against his conviction on the ground that the verdicts of guilty were unreasonable as they were inconsistent with the not guilty verdicts. The applicant also sought leave to appeal against his sentence on the ground that the sentencing judge breached the principle in The Queen v De Simoni (1981) 147 CLR 383; [1981] HCA 31 by taking into account as an aggravating circumstance that the complainant was under the applicant's authority at the time of the offending conduct. Held (Stern JA, Harrison and N Adams JJ agreeing) granting leave to appeal, dismissing the appeal on conviction, allowing the appeal on sentence, quashing the sentence and resentencing the applicant: As to the conviction appeal: (1) Having reviewed all of the evidence, there were logical explanations for the acquittals of the applicant on counts 1-2 and 5-9 other than a rejection of the complainant's evidence. It was open to the jury to accept that the complainant's evidence was at least in part credible, but to have been cautious about accepting her evidence as establishing the applicant's guilt beyond reasonable doubt in the absence of any corroborating evidence: [33], [41], [43], [50], [54], [59], [73]. (2) The verdicts on counts 3 and 4 were not unreasonable. It was open to a jury acting reasonably to convict on counts 3 and 4, notwithstanding the acquittals on the other counts. Other than as regards the date on which the incident occurred, there was no evidence which stood against counts 3 and 4 occurring as the complainant said. There were also matters that corroborated this account: [67]-[72], [73]-[75]. As to the sentence appeal: (3) In finding that the complainant was "under the offender's authority at the time", in addition to the applicant being in a position of trust, the sentencing judge relied on matters which fell within the more serious offence under s 66A(2) of the Crimes Act of which the applicant was neither charged nor convicted. The sentencing remarks cannot be read consistently with any other conclusion: [112]. The Queen v De Simoni (1981) 147 CLR 383; [1981] HCA 31, applied, Rainbow v R [2018] NSWCCA 42, Cordeiro v R [2019] NSWCCA 308, Burr v R [2020] NSWCCA 282, Kilby v R [2023] NSWCCA 247, distinguished. (4) It is necessary for this Court to exercise the sentencing discretion afresh. Having regard to the unchallenged factual findings made by the sentencing judge, putting to one side the finding that the complainant was "under the offender's authority" at the time of offending, and relevant evidence of post-sentence conduct, a lesser sentence is warranted. The applicant is resentenced to an aggregate sentence of 8 years and 3 months to commence with a non-parole period of 5 years: [113], [115], [140]-[141].

STERN JA: The applicant seeks leave to appeal, pursuant to s 5(1)(b) of the Criminal Appeal Act 1912 (NSW), from his convictions of two offences, contrary to s 66A(1) of the Crimes Act 1900 (NSW) (as in force at the time of the offending) of sexual intercourse with a person under 10 years of age. These were counts 3 and 4 of an indictment which comprised nine charges, spanning the period 1 June 2013 to 17 June 2019. The applicant was convicted following a trial in the District Court constituted by a Judge and jury of 12. The jury returned verdicts of not guilty on counts 1-2 and 5-9 of the indictment. The applicant was sentenced on 23 August 2022, on each of counts 3 and 4 to concurrent terms of 9 years imprisonment, with a non-parole period of 5 years and 6 months. The applicant also seeks leave to appeal against his sentence under Criminal Appeal Act, ss 5(1)(c) and 6(3).
As the complainant was a child at the time of the events to which her evidence relates, s 15A of the Children (Criminal Proceedings) Act 1987 (NSW), prevents publication of her name, or any matter which could identify her. Section 578A of the Crimes Act prevents publication of the complainant's name or any matter which would, or would likely, identify her. I will thus not refer to the complainant in these reasons, and will not disclose any matter, including the name of the applicant, which could identify her. For this reason, I will refer to the applicant as the applicant or "HA", as it is apparent that disclosure of his identity would be likely to lead to identification of the complainant. For the same reason I will also refer to her family members without reference to their names.
The complainant was born in 2005 and is the sister of the applicant's wife. The applicant was born in 1980. Each of the first five charges on the indictment related to the period of time 1 June 2013 to 20 October 2015. During that period the complainant was aged between seven and nine years old.
The charges on the indictment, and the jury verdicts, are summarised in the following table: Count Date Offence/Conduct Offence provision Verdict 1 1/06/13-20/10/15 Sexual intercourse with a person under 10 years of age Crimes Act, s 66A(1) Not guilty 2 1/06/13-20/10/15 Sexual intercourse with a person under 10 years of age Crimes Act, s 66A(1) Not guilty 3 1/06/13-20/10/15 Sexual intercourse with a person under 10 years of age Crimes Act, s 66A(1) Guilty 4 1/06/13-20/10/15 Sexual intercourse with a person under 10 years of age Crimes Act, s 66A(1) Guilty 5 1/06/13-20/10/15 Sexual intercourse with a person under 10 years of age Crimes Act, s 66A(1) Not guilty 6 1/06/13-31/03/14 Aggravated act of indecency towards a person under the age of 16 years (under authority) Crimes Act, s 61O(1) Not guilty 7 1/04/14- Sexual intercourse with a person under 10 years of age Crimes Act, s 66A(1) Not guilty 31/07/14 8 1/10/18- Aggravated act of indecency towards a person under the age of 16 years (under authority) Crimes Act, s 61O(1) Not guilty 31/10/18 9 1/06/19- Stalk or intimidate with intent to cause fear of physical or mental harm Crimes (Domestic and Personal Violence) Act 2007 (NSW), s 13(1) Not guilty 17/06/19

[3]

Counts 1-2 were alleged to have been carried out during what I will describe as the "first incident". Counts 3-4 were alleged to have been carried out during what I will describe as the "second incident". Count 5 was alleged to have been carried out during what I will describe as a "third incident". As set out above, each of these incidents was alleged to have occurred during the period 1 June 2013 to 20 October 2015. Each of counts 6-9 were alleged to have been carried out on separate incidents. The evidence of the complainant as to each of the charges comprised two interviews with the police, conducted respectively on 17 June 2019 and 27 September 2019, and oral evidence given by the complainant provided on 10 and 11 March 2022 during a prior trial which had aborted. Each count depended upon the complainant's evidence, but there was also, to some extent, corroborating evidence.
The applicant pleaded not guilty to each charge.
The applicant appeals on two grounds. 1. The verdicts of guilty are unreasonable as they are inconsistent with the not guilty verdict. 2. The sentencing judge breached the De Simoni principle by taking into account as an aggravating circumstance that the victim was under the applicant's authority at the time of the offending conduct.
Leave is required as regards ground 1 as the proposed ground involves questions of mixed fact and law: Criminal Appeal Act, s 5(1)(b). By s 6(1) of the Criminal Appeal Act, an appeal against conviction is to be allowed if (relevantly) this Court is of the opinion that the conviction "is unreasonable or cannot be supported, having regard to the evidence", or that, "on any other ground whatsoever there was a miscarriage of justice". Leave is also required for ground 2: Criminal Appeal Act, s 5(1)(c). By s 6(3) of that Act, on an appeal against sentence, the court, if it is of opinion that some other sentence, whether more or less severe is warranted in law and should have been passed, shall quash the sentence and pass such other sentence in substitution therefor, and in any other case shall dismiss the appeal.
The applicant submits that reasonable doubt about the guilt of the applicant in respect of counts 1-2 and 5-9 must have been based upon the reliability of the complainant and that equal doubt about her reliability (and thus the applicant's guilt) ought to have properly flowed through to the jury's consideration of counts 3 and 4.
The applicant submits that this is particularly so for counts 1-2 and 5 as these occurred during the same time frame as counts 3-4, and all revolved around a trip with the applicant in the complainant's mother's car, during which he sexually assaulted and physically assaulted her then took her to McDonald's and drove her home. Further, as regards each of counts 1-5, there is some corroborative evidence from the complainant's mother of bruising.
For the reasons set out below, leave to appeal should be granted. The appeal against conviction should be dismissed but the appeal against sentence should be allowed. It therefore falls to this Court to resentence. The sentence that should be imposed for counts 3 and 4 is an aggregate term of 8 years and 3 months, with a non-parole period of 5 years.

[4]

Applicable legal principles

The principles that apply to a complaint that a verdict is unreasonable are well established. As set out in the joint judgment of Mason CJ, Deane, Dawson and Toohey JJ in M v The Queen (1994) 181 CLR 487 at 492-493; [1994] HCA 63: "Where, notwithstanding that as a matter of law there is evidence to sustain a verdict, a court of criminal appeal is asked to conclude that the verdict is unsafe or unsatisfactory, the question which the court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. But in answering that question the court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses. On the contrary, the court must pay full regard to those considerations". (Footnotes omitted)
Most recently in Dansie v R (2022) 274 CLR 651; [2022] HCA 25 at [12], the High Court confirmed the continuing authority of M v The Queen as the test for unreasonableness. In the joint judgment at [7]-[8] it was held that: "The function to be performed by the Court of Criminal Appeal is to determine for itself whether the evidence was sufficient in nature and quality to eliminate any reasonable doubt that the accused is guilty of that offence. That understanding of the function to be performed by a court of criminal appeal in determining an appeal on the unreasonable verdict ground of a common form criminal appeal statute was settled by this Court in M. The reasoning in the joint judgment in that case establishes that "the question which the court must ask itself" when performing that function is "whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty", that question being "one of fact which the court must decide by making its own independent assessment of the evidence". (Footnotes omitted)
Where, as here, the ground of appeal relies upon an alleged inconsistency between guilty and not guilty verdicts, the burden of establishing inconsistency rests on the applicant. As held in MacKenzie v The Queen (1996) 190 CLR 348 at 367; [1996] HCA 35 (Gaudron, Gummow and Kirby JJ) ("MacKenzie"), the test is one of logic and reasonableness: "Thus, if there is a proper way by which the appellate court may reconcile the verdicts, allowing it to conclude that the jury performed their functions as required, that conclusion will generally be accepted. If there is some evidence to support the verdict said to be inconsistent, it is not the role of the appellate court, upon this ground, to substitute its opinion of the facts for one which was open to the jury." (Footnotes omitted)
As was recognised in MacKenzie at 367, juries are regularly, and properly, directed that each count must be considered separately and with respect to the evidence that supports (or otherwise) that count. Juries are also routinely, and properly, directed that it is open to them to accept some parts of a witness's evidence and to reject other parts: KBT v The Queen (1997) 191 CLR 417 at 424; [1997] HCA 54 (Brennan CJ, Toohey, Gaudron and Gummow JJ, Kirby J agreeing).
In a case where, as here, there were allegations of multiple sexual assaults against a single complainant, Spigelman CJ observed in R v Markuleski (2001) 52 NSWLR 82; [2001] NSWCCA 290 at [34]: "In the common case of multiple sexual assaults against a single complainant, often over a period of time, juries frequently acquit on some charges and convict on others. The issue raised by [Jones v The Queen (1997) 191 CLR 439; [1997] HCA 56] is to determine when an acquittal so affects the credibility of the complainant that, in combination with other factors, a conviction was not open to the jury. A court of criminal appeal must perform this task whilst acknowledging the role of the jury…"
In MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53 at [34], Gleeson CJ, Hayne and Callinan JJ observed: "… [a verdict of not guilty of a sexual offence] does not necessarily involve a rejection of the complainant's evidence. A juror might consider it more probable than not that a complainant is telling the truth but require something additional before reaching a conclusion beyond reasonable doubt. The criminal trial procedure is designed to reinforce, in jurors, a sense of the seriousness of their task, and of the heavy burden of proof undertaken by the prosecution. A verdict of not guilty does not necessarily imply that a complainant has been disbelieved, or a want of confidence in the complainant. It may simply reflect a cautious approach to the discharge of a heavy responsibility." (Emphasis added)
Further, as held by Hoeben CJ at CL in Walker v R [2019] NSWCCA 4 (Rothman and Price JJ agreeing): "104 There is no general rule that in cases where several offences depend upon the evidence of a single complainant, acquittal on some counts compels the conclusion that the jury must necessarily have regarded the complainant generally as an untruthful witness or that the complainant's credibility was undermined in respect of the counts upon which they have returned guilty verdicts: MFA v The Queen [2002] HCA 53; 213 CLR 606 at [35] and [89]. 105 The applicant bears the burden of establishing inconsistency of verdicts and it is only where inconsistency rises to the point where intervention is necessarily required to prevent a possible injustice, that the relevant conviction will be set aside: Still v R [2010] NSWCCA 131 at [58]; Miller v R [2014] NSWCCA 34 at [56]; Darby v R [2016] NSWCCA 164 at [140]; Tsaccounis v R [2016] NSWCCA 163 at [116]. Furthermore, this task must be considered in the context of the system within which juries function as the trier of fact and of the jury's role in that system (MFA at [34]). 106 The significance of verdicts of not guilty on some counts on an indictment must be considered in the light of the particular circumstances of the case. As Gleeson CJ, Hayne and Callinan JJ observed in MFA at [34], it must be borne in mind that where an indictment contains multiple counts, the jury will ordinarily be directed to give separate consideration to each count and that the jury will ordinarily be directed that the evidence of each witness may be accepted in whole or in part."
As stated by Simpson J (McClellan CJ at CL and Latham J agreeing) in TK v R (2009) 74 NSWLR 299; [2009] NSWCCA 151 at [128]: "In determining whether convictions are unreasonable, ... the focus of the inquiry is upon any explanation, not for the convictions, but for the acquittals. If such an explanation can be found, without resort to doubts about the complainant's credibility, the verdicts of guilty may not be unreasonable, at least on that basis."
These principles have regularly been followed: see eg Walker v R at [110]; Collins v R [2020] NSWCCA 198 at [13]-[14]; NW v R [2023] NSWCCA 134 at [36]-[39].
As held by Basten JA in Ganiji v R [2019] NSWCCA 208 at [13] (Button and Lonergan JJ agreeing): "The correct approach depends on discarding the term 'inconsistent' with respect to the verdicts, as it assumes unreasonableness, or some unspecified error, on the part of the jury. Absent further analysis, a conviction on one or more counts on an indictment, accompanied by acquittal on one or more other counts, does not necessarily demonstrate 'inconsistency' or any other error on the part of the jury. The critical circumstance said to raise possible error is that both counts depended upon the jury accepting the evidence of the complainant. In such cases, it is necessary to have careful regard to the surrounding circumstances in order to determine whether there is a rational basis upon which it was open to the jury to accept the complainant with respect to one aspect of her evidence, but not with respect to other aspects."

[6]

Counts 1 and 2

The first incident, to which counts 1 and 2 relate, was described by the complainant as having occurred on the night of a party to celebrate the engagement of her sister and the applicant. The evidence before the Court was that that party took place on 17 October 2013. The complainant's evidence was at the time when the abuse occurred, the complainant was living with her and her family. She thought this was in the beginning of 2014. She said that on that night there was a barbeque but that she didn't "really eat barbeque". The applicant had said that she should come with him to McDonald's. She said that it would have been "like 8:00pm and up". She said that her mum trusted him and she let them go. He then drove her in her mother's car, a really big car with seven seats, a "Toyota Prado or something", to a parking lot at a big oval in Minchinbury in front of an IGA where he then undressed her. He would either punch and slap her and tell her that if she told her mum he would either hurt her or kill her mum. After the incident he took her to McDonald's then took her home.
In her first interview, the complainant said that the applicant put his finger in and licked her vagina. In her second interview, she mentioned the applicant putting his finger in her vagina but did not refer to him licking her vagina.
During her cross-examination, the complainant said that there was another celebration of the engagement of her sister and the applicant after the October 2013 engagement party and she was not sure which celebration was occurring at the time of the first incident.
The complainant's sister's evidence was that she recalled two instances when the applicant took the complainant to McDonald's. They were in the afternoon and from what she remembered the applicant drove the complainant in the white Prado. She observed that the complainant did not seem happy after those trips and that she went straight to her room. The complainant's mother did not recall the complainant going to McDonald's with the applicant in 2014 but she did recall that he took her to McDonald's in 2015. The complainant's wife said that the complainant did not ever go to McDonald's with the applicant.
The complainant's aunt's evidence was that she was at the engagement party and she had "no idea at all" of the applicant taking the complainant away to McDonald's on that occasion. She also said that there was "no way anyone" could have gone out during the engagement party. The complainant's aunt also attended the signing of the marriage contact in January 2014 and had no recollection of seeing the applicant take the complainant to McDonald's on that occasion. She said that the food at the engagement party was traditional food ordered from a restaurant. A number of other family members described the food at the engagement party as Arabic cuisine.
As to the date of the wedding, the evidence before the Court (from the complainant's uncle by marriage) was that the marriage contract was signed in January 2014. His evidence was that the applicant did not move into the complainant's family's house until after the marriage contract was signed.
Transport for NSW records in evidence before the Court showed that the complainant's family lived at Minchinbury from 9 September 2013 until 23 June 2015. The complainant's mother's evidence was also that they lived at Minchinbury from 2013 up until 2015. The Transport for NSW records also showed that the complainant's mother owned a Prado from 3 February 2015 until 25 March 2015. The complainant's mother's evidence was that she did not have a car in 2013, that she had a Prado in 2014, and that she registered the Prado within days of getting it. She said that sometimes she would give the Prado to the applicant to drive. She also said that before the Prado she had a white Mazda seven seater four-wheel drive and the applicant used to take it. She said that sometimes she asked the applicant to take the complainant to McDonald's.
Records tendered before the Court also showed that the applicant got his learner's driver licence on 10 February 2014 and his driver licence on 6 August 2014.
Counsel for the applicant at trial, in his closing address, submitted that there were a number of problems with the complainant's account of the first incident. He referred to a number of matters including the date of purchase and registration of the Prado, the unlikelihood of the applicant taking the complainant to McDonald's during the engagement party, the fact that the complainant only referred to the possibility of a second engagement party during cross-examination, that there was no evidence that anyone saw the applicant leave the engagement party with the complainant or that he took her to McDonald's during that party, and that the evidence was that the food at that party was traditional and not barbeque. He then submitted that "the fundamental problems with [the complainant's account] would have to create a reasonable doubt about whether that incident occurred" and would also have to "create doubts about her reliability, her accuracy and her truthfulness, and you would have to keep that general concern in mind when you go and consider the other accounts [sic] on the indictment".
Having regard to the matters set out above, I have concluded that a logical explanation for the jury acquitting the applicant of counts 1 and 2 is that there were a number of inconsistencies going to matters which were the essence of the complainant's account of the first incident. That is particularly so given the inconsistencies referred to above, and the fact that the applicant did not get his driver licence until August 2014. Conscious of its obligation to scrutinise the evidence with care, and to consider each count individually, those inconsistencies could well have led the jury to have reasonable doubt as to whether the events that were the basis of counts 1 and 2 occurred. Whilst that might have led the jury to be cautious about accepting the complainant's evidence if not corroborated, it would nonetheless have been open to the jury to accept the applicant's evidence in circumstances in which corroborative evidence was available.

[7]

Count 5

In her first interview the complainant said that the third occasion, which involved digital penetration, occurred in 2017. This was charged as count 5. She thought that this happened in 2017, because there was a "long period from 2016, like from the second time. There was a long period where we didn't talk".
The complainant said that the third occasion occurred when she was living in Mount Druitt. She said that they were first at the applicant's house and then he took her out to McDonald's. She didn't know where it was that they parked, and the abuse occurred, but it was a long drive between that place and the McDonald's that they then went to, it was "like a 30 minute" drive. This was a "different" McDonald's from the previous occasions. She said that the abuse occurred in the same car as the previous occasions, even though the applicant had his own car by then. Her evidence was that the applicant was very violent on this occasion. He took out all his anger on her. On the way to the place where they parked, he asked her about music, but after the abuse she was crying the whole way.
She explained that she was in the passenger seat and then he took her out of the car. She said that she "was about to run away, but he ran faster". She said that he "gripped on me, he carried me on his, like, on his left shoulder". He opened the back seat and pushed her. She said that she hit her head and "had like a concussion for like 2 days after that".
The complainant described the applicant grabbing her thighs on this occasion and her mother seeing these marks and asking her about them. She described these marks as being like finger marks caused by his fingernails digging into her skin. She explained these marks to her mother as being from sport.
She said that when they returned home "my mum was like suspicious, she was like why did you guys take long? And then he made…an excuse…they were so busy. And then there wasn't any hamburgers left so we went on the other McDonald's. The other McDonald's was on the same highway…but further down".
The Transport for NSW records indicated that the complainant's family were living in Mount Druitt between June 2015 and October 2017.
In his closing address, counsel for the defence submitted that the complainant's evidence was that this occasion occurred in 2017 but the charge related to a period between 1 June 2013 and 20 October 2015. He also relied in closing address upon the fact that there was no evidence of any family member giving evidence of the complainant being away with the applicant for some two and a half hours.
In my judgment, a logical explanation for the jury having acquitted the applicant on count 5 is that the complainant's evidence was that this occurred outside of the charge period. That conclusion would not involve any rejection of the credibility or reliability of the complainant's evidence as a whole. A further logical explanation for the acquittal on count 5 relates to location. The charge was that the offence occurred in Minchinbury. The complainant's evidence was, however, that she did not know where the abuse occurred but that it was a long drive from there to the McDonald's that they then went to.

[9]

Count 7

The fourth incident, which was charged as count 7, was alleged to have occurred on a day between 1 April 2014 and 31 July 2014. The complainant said the applicant licked her vagina and that this incident was the last time that it happened. In her first interview she said this happened in "2015-ish, 16, 2015 and 16". She said on three occasions during this interview that it happened between 2015 and 2016. In evidence in chief, however, the complainant said that this incident occurred in 2017.
The complainant said that when the applicant and his wife moved to a "brand new apartment" in Liverpool ("the unit") "[t]hey put their boxes in the garage". One night, the applicant told the complainant and her sister "to come down to help him get the boxes up". She said that that night the applicant's wife and kids were upstairs in the unit. She said that there was about "20 metres between the garage and the unit".
She said that the applicant made her sister carry a "really heavy box" so that she would take longer to go upstairs and come back. When her sister left, the applicant turned on the light and got the complainant undressed and took off her pants. She said the applicant "licked me again, he fingered me again". Later in the same interview she said the applicant "started licking me again". She said he heard her sister, who "kind of made a noise". She said that five seconds before her sister came in, the applicant dressed her again and then turned off the light "and like pretended like nothing happened".
The complainant's account was to some extent corroborated by her sister, who said that she recalled moving boxes from the car when the applicant moved into the unit. She said they drove from the old house, using his car, to the unit. She said that she would carry boxes up from the car to the unit and that the applicant's wife was in the kitchen. The complainant was with her when she helped with the move. However, her evidence was that the boxes were moved from the car to the unit. She did not mention a garage. She also said that the complainant and the applicant were in the car outside at the time. She said the applicant was getting boxes out of the car "in the street".
The applicant's wife gave evidence that when the applicant moved to the unit a friend with a van helped him move and that the applicant's "stuff" was moved from the van into the apartment. She said her sisters were never there to help with the move. A friend of the applicant also gave evidence about the move. He said that, together with two other persons, he had helped to move the applicant into the unit. He said the belongings were put into the unit and no one other than the four men unloaded the boxes at the unit. He said that on that occasion they moved all the stuff that had to be moved.
The Transport for New South Wales records before the Court had the unit recorded as the address of the applicant from 23 May 2014. In closing submissions, counsel for the Crown suggested that the applicant may have moved in before that date. As set out above, however, the applicant did not have his driver licence until August 2014.
It is my view that there are numerous logical explanations for why the jury may have acquitted the applicant of count 7. First, the date given by the complainant for this occurrence was well beyond the date range for this offence. Second, the evidence of the applicant's friend as to the move suggested that there would not have been boxes in the garage. Third, the complainant's sister's evidence did not involve the complainant and the applicant being in the garage, but rather involved a move from a car in the street into the unit. These matters may well have been sufficient to cause the jury to have some doubts as to the reliability of the applicant's evidence in relation to this incident, without casting such doubt upon her credibility as to reject her evidence as to other incidents. Again, the jury's acquittal of count 7 is logically consistent with it taking a cautious approach where there is no corroboration of the complainant's account.

[10]

Count 8

Count 8 was an allegation of indecency which was alleged to have occurred on a day between 1 October 2018 and 31 October 2018 at Fairfield.
The complainant described the incident that was charged as count 8 in her second interview. She said that it happened in the applicant's house at Fairfield. She said that she was sitting on the couch and it was "shaped this way, so I could see the bedrooms and the other bedroom and the bathroom". She said that the applicant came home from work and had a shower. The applicant's wife was cooking in the kitchen with the kids. After he finished his shower, the applicant opened the door a little bit and saw that the complainant was the only one sitting on the couch. She said that he opened the door and looked at her and she stared at her phone and ignored him. She said that she just "focused on my phone. I tried so hard not to look up, because he was there". She said that he came out with his robe open and exposed himself. She said he then went to his room and locked his door. She said he then opened the door and stared at her and that she tried to ignore him. She said that she then moved and went to the other side of the living room, onto the other couch. She said that on the other couch she could see the kitchen only. She said that he came to the kitchen, opened his robe again, touched his penis "to make me see" and then he closed his robe. She said that she called out to her sister, the applicant's wife, asking what was for dinner and then "he covered himself, and went to the bedroom to change".
The applicant's wife provided a floor plan of their house at the time when they lived there. During her evidence in chief she was taken through it by counsel for the defence. He asked her to mark up the placement of the rooms and items of furniture relevant to the complainant's account, including the placement of the sofa and the bedroom. Counsel for the defence, in closing submissions at the trial, submitted on the basis of this marked-up floor plan that, contrary to the complainant's evidence, there wasn't a sofa in the loungeroom that could be shaped so that a person on the sofa could see both the bathroom and the two bedrooms. One of the sofas had no direct line of sight to the bedroom as there was a long hallway which would block the bedroom from view. In order to see a bedroom from the other of the sofas would require the complainant to have been sitting with her head turned 90 degrees to the left, that is "if [she] was actually already looking in the direction of the bedroom". The complainant could not have seen the applicant's bedroom from that sofa if, as she said in her evidence, she was on her phone. He submitted that it was not possible to know where the complainant was sitting because she was not asked to explain this in her evidence. Thus, it was not possible to test whether she might have had a line of sight to a bedroom at all.
There was no corroboration of count 8. The matters raised in the submissions of the applicant's counsel at trial, as set out above, were not put to the complainant. In my view, the jury may well have felt, in these circumstances, that there was reasonable doubt as to whether the matters the subject of count 8 occurred as charged. That would logically explain the acquittal on count 8 but does not suggest any overarching rejection of the credibility of the complainant's evidence.

[11]

Count 9

Count 9 charged stalking or intimidation on a day between 1 June 2019 and 17 June 2019. The trial judge, in her summing up, explained to the jury that, as regards this charge, the Crown must prove beyond reasonable doubt that the applicant stalked the complainant and that he had the intention of causing her to fear physical or mental harm.
The complainant described this incident as involving the applicant coming to the front of her school and staring at her. She said that he had done that a couple of times. The last time he had done that was the Wednesday before the complainant's interview with the police on 17 June 2019, the same day that she finally told her counsellor about the abuse. She said that the applicant had been coming to her school, looking at her and that every time her saw her he would stop again and stare for five seconds and then turn around again. In cross-examination, the complainant said that at the time of this incident she had seen the applicant in front of a little village shopping centre around her school. This happened at 8:00am. The applicant was in a silver or white car.
A police officer, Detective Wallace, gave evidence that the complainant had told him that she saw the applicant in a silver car at the shopping centre across the road from the school on the date that she disclosed the allegations to her school counsellor, being 12 June 2019. Detective Wallace had, however, obtained CCTV footage of the relevant area and there was nothing in that footage that showed the applicant either inside a car or outside of a car.
In closing submissions, counsel for the defence submitted that common sense suggested that bottle shops would not be open at 8:30am. He also queried why statements had not been taken from any school mates notwithstanding that the complainant's evidence was that two school friends had also seen the applicant that morning.
In my view, again, the jury's acquittal of the applicant on count 9 is consistent with the jury taking a cautious approach to the complainant's evidence where it was not corroborated and there was some evidence that was inconsistent with her account of the incident. The acquittal on count 8 can thus be explained on that logical basis. That does not involve a rejection of the credibility of the complainant's account more generally.

[12]

The convictions on counts 3 and 4

The complainant gave various accounts as to the timing of the second incident, which was the subject of counts 3 and 4. She initially said that it happened a few weeks after the first occasion, then said she thought it happened a few days later. She said that he did the same things that he had done to her on the first occasion but that the "talking was a bit different". As with counts 1 and 2, in her first interview she described the applicant putting his finger in her vagina and also licking her vagina but in her second interview she only mentioned the digital penetration.
The complainant said that when the applicant got into the car on the day of the second incident he asked her if she was excited and said "[p]lease don't tell me that you're going to do the same thing. Then he's like, I will, but this time it'll be more playful". He asked her whether she watched porn movies and when she said she wasn't interested he said "Ok, then I'll teach you in real life". She also said that she asked him "don't you already do that to my sister" and he replied "oh, but your sister gets pregnant easily". He then said "[y]ou won't get pregnant. You'll be fine". She said that she had tried to talk to him after the abuse and asked if he was ok because she knew at that time he was having a fight with his wife. She also described undressing herself on this occasion.
She said that the applicant parked at a different place on the second occasion because at this time the place where he had parked on the first occasion was being renovated. She said that on this occasion they parked "still around that area, but it was just like more closer to the IGA". She said that the abuse occurred around 9:00pm on a weekday and that they were in the Prado. He said to her that if she told anyone he would kill her and her mother. He pushed her, choked her, and got really mad. She said that after this occasion she had bruises all over her body and her mother saw her bruises. She said that her mother asked about the bruises and she "always blamed it on sport 'cause I used to play netball". She said that she had bruises on her leg "because of like, he would like move me" and "he done that like really hard, to like try and open my legs and then he moved my hand". She also said he slapped her on the left side of her face. In her second interview she described how he had hit and squeezed and elbowed her inside thighs.
Again after the abuse he took her to McDonald's and then took her home. She said it happened during Eid.
An employee of Blacktown Council gave a statement that there were two car parks at Minchinbury oval, one known as car park 138 and the other known as car park 145. The records did not show that there was any work done to the car parks between 2013 and 2014, however there were works done on the car parks in 2015. The first works were done on car park 318. These commenced on 20 March 2015 and were completed on 14 April 2015. The second works were car park 145. These commenced on 9 March 2015 and were completed on 14 April 2015. These periods overlapped with the period when the complainant's mother owned the Prado.
There was also evidence from the complainant's mother, referred to above, that she recalled the applicant taking the complainant to McDonald's in 2015.
Significantly, the complainant's mother also gave evidence that when she used to bath the complainant, she noticed some marks on her thighs, her hand, on her face, and also that sometimes she had black eyes, "like darkness under her eyes". She said she saw a blueish area on both thighs. She did not honestly remember but thought it was when the complainant was seven to eight years old or maybe nine, she didn't know exactly. She said that the blue marks were on the inside of the complainant's thighs. She also saw marks on her arms on another occasion. When asked how often she saw a mark or marks on the complainant's arms she said "[h]onestly, I don't remember exactly, but on may [sic] occasions I noticed things". She said that when she asked about the marks on the complainant's thighs, the complainant said "it was from this kind of game at the playground". She also said she noticed something on the complainant's face once which was redness and said it "was different. Not normal thing". This occurred when they lived in Minchinbury. The complainant's mother also gave evidence that the complainant was "very fearful to go to her sister's house", meaning the house where the applicant lived with his wife.
In my judgment, it is significant that in relation to the second incident there is evidence from a number of sources corroborating the complainant's account. First, the complainant's mother's evidence of noticing the marks on the complainant's inner thigh, hand and on her face is highly material evidence corroborating important aspects of the complainant's account. The location of the bruises to the complainant's inner thighs is corroborative of them being caused during abuse as described by the complainant in relation to counts 3 and 4. The complainant's mother's evidence of having asked the complainant about this bruising and how the complainant explained away the marks also corroborates the complainant's account of this incident. Whilst the bruises on the inner thigh are also consistent with the complainant's account of count 5, and as regards that incident the complainant gave specific evidence of her mother noticing bruises on her thighs whereas in relation to counts 3 and 4 her evidence was simply that her mother "saw my bruises", it was open to the jury to find that the complainant's mother's evidence of identifying bruises on her inner thighs corroborated her account of counts 3 and 4. The complainant specifically described bruising to the inner thigh in respect of both the second and third incidents.
Second, the evidence from the employee of Blacktown Council established that there were renovations on a car park in the broad location where the complainant described them in her account of this incident. This was at a time when the complainant's mother owned the Prado.
Third, the complainant's mother gave evidence that she recalled the applicant taking the complainant to McDonald's in 2015. This also corroborates the complainant's account of the second incident, if it is accepted that this occurred at the time of the renovations in the relevant area.
In my view, it would also have been open to the jury to find that the complainant's evidence of what was said by her and by the applicant during this incident had the ring of truth. By way of example, the applicant having asked the complainant if she was excited, or his comment about why he did not do these things to his wife, were both matters that the jury could well have considered to be so unusual that it was highly unlikely that they would have been made up by the complainant. The same is true of the complainant's evidence that she undressed herself on this occasion.
Having reviewed the whole of the evidence, I am satisfied that it was open to the jury to accept the complainant's evidence as to the second incident, and convict on counts 3 and 4, notwithstanding the jury having not been satisfied beyond reasonable doubt of the other counts. This is so notwithstanding that there was clearly an inconsistency in the complainant's evidence as to timing, in that the second incident could not have occurred within days or weeks of the first incident as described by the applicant. It would have been open to the jury to find that an inconsistency as to timing of such an event is of no real significance given the complainant's age at the time of the incident and the period of time between the incident and the complainant reporting it and being asked to give an account of it.
It would also have been open to the jury to reject the applicant's wife's evidence that the complainant never went to McDonald's with the applicant, having regard to her mother's evidence that she did recall him taking her to McDonald's in 2015, in addition to the evidence of the other sisters who also recalled that the complainant was taken by the applicant on trips to McDonald's.

[14]

Ground 2

The sentencing hearing proceeded before her Honour Judge Harris on 19 August 2022. Both parties relied on their written submissions but supplemented those submissions with brief oral submissions.
In the Crown's written submissions, under the heading "Objective Seriousness", the Crown set out "factors common to both counts" to support its contention that "the objective seriousness relating to both offences falls squarely within the mid-range". Under the sub-heading "Age Difference" the Crown stated that: "19. The victim was not a willing participant and was directed to engage in sexual acts by a person in a position of loco parentis. 20. The offender's age and status as an older brother in law enable him to abuse his position of trust (which the Crown says is an aggravating factor, see below)."
Under the sub-heading "Coercion" the Crown submitted that "[t]he offender exploited the age difference between himself and the victim and the authority he held over her. Additionally, the offender used the victim's love of McDonald's to engage her and then used threats to render her voiceless."
The Crown then made the following submissions: "Aggravating & Mitigating Factors 43. The following submissions will address aggravating and mitigating factors in reference to s.21A of the Crimes Sentencing Procedure Act (NSW) 1900. The submissions may also raise factors that should be approached with caution in an effort to avoid double counting. The following references to statutory provisions only relate to the Crimes Sentencing Procedure Act (NSW) 1900. Aggravating Factors 44. Section 21A(2)(b) - the offences involved the actual use or threatened use of violence. 45. Section 21A(2)(k) - the offender abused a position of trust or authority in relation to victim. The Court of Criminal Appeal has expressed particular concern that in family situations children are required to obey their parents. Although the offender herein was not a parent of the victim, he was the much older husband of her sister and at times acted in loco parentis…" (Footnotes omitted, emphasis in original)
The written outline of submissions on sentence on behalf of the applicant, also contained in the context of submissions on objective seriousness, included the following: "Statutory aggravating factors 15. It is accepted that [the applicant] was in a position of trust or authority in respect of the victim: s21A(2)(k)."
At the time of the offending, s 66A of the Crimes Act relevantly provided: (1) Child under 10 Any person who has sexual intercourse with another person who is under the age of 10 years is guilty of an offence. Maximum penalty: imprisonment for 25 years. (2) Child under 10 - aggravated offence Any person who has sexual intercourse with another person who is under the age of 10 years in circumstances of aggravation is guilty of an offence. Maximum penalty: imprisonment for life. (3) In this section, circumstances of aggravation means circumstances in which: … (d) the alleged victim is (whether generally or at the time of the commission of the offence) under the authority of the alleged offender, or
Section 21A(2)(k) of the Crimes (Sentencing Procedure) Act 1999 (NSW) ("Sentencing Act") provides: (2) Aggravating factors The aggravating factors to be taken into account in determining the appropriate sentence for an offence are as follows - … (k) the offender abused a position of trust or authority in relation to the victim

[15]

The sentencing remarks

On Tuesday 23 August 2022, Judge Harris delivered her remarks on sentencing, having heard brief submissions on sentence on 19 August 2022 (the preceding Friday).
In the context of considering the objective seriousness of the offending, her Honour made no reference to s 21A(2)(k), but said the following: "In assessing the objective seriousness of the offences, I have had regard to the offender's position of trust and the special relationship between the offender and the victim given that he had been or was in the process of being accepted into the victim's family as her older sister's fiancé. The victim was also under the offender's authority at the time, she was alone with him on what was meant to be a drive to McDonald's. These are both aggravating features albeit there is an overlap between them. … . The offences fall around the mid-range of objective seriousness."
The applicant submits that it is apparent from these remarks that the applicant was sentenced for the offence under s 66A(2) of the Crimes Act (as it was at the time of the offending), namely of sexual intercourse with a person under 10 years of age in circumstances of aggravation, rather than for the offence under s 66A(1), with which he was charged. As set out above, one circumstance of aggravation, under s 66A(3)(d), was that the alleged victim was (whether generally or at the time of the commission of the offence) under the authority of the alleged offender. The offence under s 66A(2) carried a maximum penalty of imprisonment for life, whereas the offence under s 66A(1) carried a maximum penalty of imprisonment for 25 years.
The Crown's written submissions before the sentencing judge, under the heading "Coercion" within a section of the submissions dealing with objective seriousness, included that: "The offending involved both coercion and violence. The offender exploited the age difference between himself and the victim and the authority he held over her."
As set out above (see at [79]), the Crown's written submissions before the sentencing judge also included, under the heading "Aggravating Factors": "Section 21A(2)(k) [of the Crimes (Sentencing Procedure) Act 1999 (NSW)] - the offender abused a position of trust or authority in relation to the victim." (Footnote omitted)
The applicant's written submissions before the sentencing judge included the following: "14. It is submitted that the following factors are relevant to the assessment of the objective seriousness of the offending in this case. Statutory aggravating factors 15. It is accepted that [the applicant] was in a position of trust or authority in respect of the victim: s21A(2)(k)."
Neither the Crown nor the applicant made any oral submissions as to trust or authority. Both relied upon their written submissions.
The applicant submits that in this regard the submissions of both the Crown and the applicant simply recognised that the applicant's objective criminality was aggravated by the breach of trust, and that trust and authority are two different concepts. By contrast, it is submitted, in relying upon both the applicant being in a position of trust and the complainant being under his authority at the relevant time, the sentencing judge fell into De Simoni error: The Queen v De Simoni (1981) 147 CLR 383 at 389; [1981] HCA 31 ("De Simoni"). The Crown submits that there was no such error. Rather, that on a fair reading of the judgment as a whole and read in the context of the Crown's submissions, the sentencing judge was not making a finding that the aggravating circumstance of breach of authority under s 66A(3)(d) of the Crimes Act was made out.
In R v Wickham [2004] NSWCCA 193, Howie J considered the "limits upon the use" to be made upon the factors of aggravation in s 21A of the Sentencing Act. Relevantly, the "second limitation" was that found in s 21A(4) which provided that "[t]he court is not to have regard to any such aggravating or mitigating factor in sentencing if it would be contrary to any Act or rule of law to do so": at [23]. His Honour, at [26], found that one of the ways that limitation operated, consistent with the intention of Parliament to replicate the common law, was to: "…require the court to disregard a matter of aggravation because to take it into account would be to punish the offender for an offence which was more serious than that for which the offender was to be sentenced: R v De Simoni (1981) 147 CLR 363. This consideration is most likely to arise when the court has regard to factors which are often found as aggravating features of offences in the Crimes Act, such that the offence was committed in company that the offender used a weapon, or that the offender was in a position of trust."

[16]

Consideration

The principle established by De Simoni at 389 (Gibbs CJ, Mason and Murphy JJ agreeing) is that: "… a judge, in imposing sentence, is entitled to consider all the conduct of the accused, including that which would aggravate the offence, but cannot take into account circumstances of aggravation which would have warranted a conviction for a more serious offence,"
There are a number of cases in which this Court has found that there is no analogous De Simoni error in the sentencing judge taking into account that an offender was in a position of authority or trust in relation to the victim.
In Rainbow v R [2018] NSWCCA 42 ("Rainbow") the offender pleaded guilty to an offence of aggravated sexual intercourse with a child between the ages of 14 and 16 years, the circumstance of aggravation being that the victim had a cognitive impairment, contrary to (the then) ss 66C(4) and (5)(f) of the Crimes Act. Before the sentencing judge the Crown submitted (as recorded in the judgment of Hidden AJ at [23]): "although the Crown does not submit that the offender was in a position of authority viz-a-viz the victim, it is submitted that the Court could find that there was an element of trust"
In determining objective seriousness, the sentencing judge found (as recorded in the judgment of Hidden AJ at [21]) that there was: "a breach of trust involved as the victim was staying at the offender's house, she being a child spending the night in his home."
The offender submitted on appeal that the objective gravity of the offence was encompassed within the circumstance of gravity specified in the charge, being the victim's cognitive impairment, and that the sentencing judge had erred in finding that there was a breach of trust by the offender. In rejecting this ground of appeal Hidden AJ held: "30 The applicant knew that the victim had left home, and the reason she had done so. He knew that she had consumed alcohol and, perhaps, drugs. When he went to the room where she was sleeping, he knew she was alone, believing that she was in a safe place. 31 All of these factors are additional to the victim's cognitive impairment and the applicant's awareness of it. All of them contributed to an assessment of the objective gravity of crime. These matters together could fairly justify a description of the applicant's conduct, in ordinary parlance, as a breach of trust. It is in that sense that I understand his Honour to have used the expression. This ground is not made out."
In Cordeiro v R [2019] NSWCCA 308 ("Cordeiro") the complainant was a casual employee of the offender. He was convicted of a single count of sexual intercourse without consent, contrary to (at the relevant time) s 61I of the Crimes Act. The offending occurred after he provided the complainant with alcohol and she fell asleep. The sentencing judge said, as recorded in the judgment of Harrison J at [128]: "The offender was [the complainant's] direct boss and was considerably older than she was. Although [the complainant] was technically off duty at the time of the offence, at the time of the offence the offender nevertheless held the status of being her boss, and to a limited extent he was in a position of authority, and [the complainant] was entitled to trust him, something he encouraged by statements including, 'I won't let anything happen to you'. I make clear however that to the extent there is a degree of overlap between a breach of trust and a breach of a position of authority, I have taken care not to double count."
For the purpose of the more serious offence of aggravated sexual intercourse without consent under s 61J, a circumstance of aggravation was that the victim was "under the authority" of the offender. The offender submitted that the sentencing judge erred in taking into account that he was in a position of authority with respect to the victim as that involved a breach of the De Simoni principle. In rejecting this ground of appeal, Harrison J, with whom Simpson AJA and Johnson J agreed, held at [135]: "The problem with the applicant's submission is that it assumes that the s 21A(2)(k) aggravating factor of "abusing a position of authority" and the aggravated sexual assault offence, where the victim is "under the authority" of the offender, capture the same set of factual circumstances. In my opinion, the assumption is incorrect. The aggravating factor directs attention to whether the offender was in a position of authority over the victim; the aggravated offence, on the other hand, directs attention to whether the victim is under the authority of the offender. These concepts are factually distinct. Her Honour did not find that the complainant was under the authority of the applicant." (Emphasis in original)
In Burr v R [2020] NSWCCA 282 ("Burr"), the offender pleaded guilty to the offence of persistent sexual abuse of a child contrary to (at the relevant time) s 66EA of the Crimes Act, with the constituent offending being sexual intercourse with a child between the age of 14 and 16 years contrary to s 66C(3). The offender was in a relationship with the victim's mother. The Crown submitted before the sentencing judge that the aggravating feature in s 21A(2)(k) of the Sentencing Act was not made out, but that the offender had taken advantage of the victim's youth and his position within the family in circumstances in which there was a clear power imbalance between the offender and the victim: at [119]-[120]. As recorded in the judgment of Johnson J at [76], the sentencing judge said in ex tempore sentencing remarks: "There was a close relationship developed between the two. Mainly at the instigation, in my view, of the offender. There was an element of grooming and that is self-evident from the facts as I have carefully considered. I am mindful of the element of the offences. I am particularly mindful of the fact that and I find it as a fact that he was indeed in a position of authority. I appreciate, again, the age difference between the two. Something in the order of more than 27 years older at the time. He did take advantage of the familiar relationship and his age in order to have access to the victim and commit to these offences as submitted by the Crown."
One circumstance of aggravation for the purpose of the more serious offence under s 66C(4) was that the victim was "under the authority" of the alleged offender. The offender submitted on appeal that by finding that he was in a position of authority, the sentencing judge had made a finding breached the principle in De Simoni.
Johnson J, with whom Leeming JA and Rothman J agreed, found at [124] that the sentencing judge neither made a finding of an aggravating feature under s 21A(2)(k) of the Sentencing Act nor made a De Simoni error. Johnson J was satisfied that the sentencing judge had adopted the uncontested Crown's submission, set out in summary above, for the purpose of the sentencing remarks: at [119]. In that context, Johnson J held at [123] that the relevant passage in the sentencing remarks: " … ought be seen as his Honour referring to features of the offending conduct which could be described, in ordinary parlance, as involving a position of authority by the Applicant with respect to the victim: Rainbow v R at [31]."
Most recently, in Kilby v R [2023] NSWCCA 247 ("Kilby"), the offender was found guilty of a number of offences including sexual intercourse with a person aged between 10 and 14 years contrary to (the then) s 66C(1) (Count 2) and an act of indecency with a person aged under 16 years contrary to (the then) s 61N of the Crimes Act (Count 3). The victim was a friend of one of the offender's daughters. At the relevant time, a circumstance of aggravation for the more serious offences under, respectively s 66C(2) and s 61O was, in each case, the victim being "under the authority" of the offender.
The written submissions on behalf of the offender contended, in relation to s 21A(2)(k) of the Sentencing Act, that there was insufficient evidence to establish that the offender used any position of trust in a calculated way. In oral submissions before the sentencing judge counsel for the offender submitted that the "De Simoni issue" was a preliminary matter "that ought to be brought to bear in considering the question of whether s 21A(2)(k) is enlivened in the 66C charge. In my submission it cannot be." It was conceded, however, that the Court would "invariably take into account" that the offences took place at the home of the offender and that the offender was the "adult in charge" and that it was open to the sentencing judge to make a finding such as was made in Rainbow as part of the instinctive synthesis: at [32]. The Crown did not assert any matters of aggravation for counts 2 and 3.
When assessing objective seriousness, the sentencing judge said: "Count 2 was committed in the home. I accept that the complainant was under the authority of the offender. In my view it is a very serious act. … The facts of the case temper in some respects the position of authority, but it is an aggravating feature in relation to each of the complainants in my view, and was present at least in the expectations of the complainants as a consequence of the extended family, and the family interactions, and bearing in mind the offender's apparent family focus, and the regard in which he was held by other members of the family. The deference being undoubted in the minds of the complainants towards him, the expectation would have been that he was there in a position of authority."
The offender contended on appeal that the sentencing judge fell into De Simoni error by finding that the offender had abused a position of authority when committing the offences in counts 2 and 3. Davies J (Leeming JA agreeing and Wilson J agreeing giving additional reasons) rejected that ground of appeal. Davies J referred at [43] to the judgment of Harrison J in Cordeiro at [135] (set out above at [98]) and found at [44] that the position in Kilby was "no different". Further, his Honour noted that, as in Burr, the sentencing judge made no mention of s 21A(2)(k) of the Sentencing Act. Also, counsel for the offender had conceded that the sentencing judge could have regard to the issue of authority as part of the instinctive synthesis rather than under s 21A(2)(k). Having regard to these matters, and to the fact that the sentencing judge used the expression "aggravating feature" rather than the terminology of "aggravating and mitigating factors" which is found in s 21A(2)(k), Davies J held that the De Simoni error was not established.
Wilson J (with whose reasons Leeming JA agreed) found that it was apparent from an exchange between counsel and the sentencing judge (extracted by Davies J at [32]) that the sentencing judge was clearly alive to the need for caution in approaching the factual feature that the offender was looking after children at the relevant time so that it was not treated as a feature that made out the more serious form of the offence under s 66C(2), or as establishing the feature of statutory aggravation: at [50]. Wilson J found, further, that the reference to the offender being in a "position of authority" was clearly distinguishable from either feature: at [52]. Her Honour further cautioned as to the importance of reading the sentencing judgment as a whole in the context of the cases placed before the sentencing court by the Crown and applicant: at [53].
In my judgment, there are a number of matters which, together, distinguish the present case from the circumstances before the Court in each of Rainbow, Burr, Cordeiro and Kilby. First, and most importantly, the sentencing judge here found that the victim was "under the offender's authority" at the time of the offending. Her Honour thereby made a finding in the precise terms of the circumstance of aggravation under s 66A(3)(d) of the Crimes Act. In that respect, the sentencing remarks in the present case are materially different from those considered in Rainbow, Burr, Cordeiro and Kilby. In both Cordeiro and Kilby, in finding that there was no De Simoni error, the Court relied upon the fact that the sentencing judge had not made a finding in terms of the circumstance of aggravation for the purpose of the more serious offence. In Cordeiro (cited with approval by Davies J in Kilby at [43]) Harrison J at [135] found that the concept of the offender being "in a position of authority over the victim" was different to that of the victim being "under the authority of the offender". Here, the finding of the sentencing judge was unequivocally the latter rather than the former.
Second, the sentencing judge made findings both as to the applicant's "position of trust and the special relationship between the offender and the victim" and as to the complainant being "under the offender's authority at the time" of the offending. Her Honour described these two things as "both aggravating features albeit that there is an overlap between them". It is thus clear that the primary judge took both matters into account when sentencing the applicant.
Third, here the Crown's written submissions before the sentencing judge relied upon the aggravating factor under s 21A(2)(k) that the "offender abused a position of trust or authority in relation to the victim". The written submissions on behalf of the applicant accepted, under the heading "Statutory aggravating factors", that the applicant was in a position of trust or authority in respect of the complainant, and specifically referenced s 21A(2)(k). The sentencing judge's findings went beyond these submissions in the two significant respects identified above. In these circumstances, and by contrast to the position in Burr, the sentencing judge's findings cannot be read merely as an adoption of the submissions of counsel.
Fourth, by contrast to the circumstances identified by Hidden AJ in Rainbow at [31] (adopted by Johnson J in Burr at [123]) the sentencing remarks cannot be construed as merely reflecting a finding, in ordinary parlance, as to the applicant having been in breach of a position of trust. In particular, the sentencing judge's finding that an aggravating feature additional to the applicant's position of trust was that the complainant was under the authority of the applicant at the time of the offending goes well beyond that.
Finally, by contrast to the circumstance relied upon by Wilson J in Kilby, there is nothing in the transcript of the sentencing hearing that demonstrates that on this occasion the sentencing judge was, when sentencing the applicant, directed to the need for caution to avoid making any finding as to a circumstance of aggravation for the purposes of s 66A(2) of the Crimes Act.
In these circumstances, I have concluded that, in finding that the complainant was "under the offender's authority at the time" in addition to the applicant being in a position of trust, the sentencing judge relied upon matters which fell within the more serious offence under s 66A(2) of the Crimes Act, of which the applicant was neither charged nor convicted. The sentencing remarks cannot, in my judgment, be read consistently with any other conclusion. It necessarily follows that the applicant has succeeded in showing that the sentencing judge erred.

[17]

Resentencing

As the applicant has demonstrated error it is necessary for this Court to exercise the sentencing discretion afresh in accordance with the principles stated by the High Court in Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 at [42]. The Crown submits that if this ground of appeal is made out, having undertaken afresh a separate and independent exercise of sentencing discretion and taking into account the full range of factors, this Court would not form the opinion that a less severe sentence is warranted in law. The applicant submits that a lesser sentence is warranted.
The approach to be adopted by this Court is that set out by Beech-Jones J (as his Honour then was) in RO v R [2019] NSWCCA 183 at [87]-[89]. It includes putting aside the sentence imposed at first instance. This Court may, however, adopt the sentencing judge's findings of fact where, as here (subject to the De Simoni issue identified above), those findings are not disputed: Turnbull v R [2019] NSWCCA 97 at [44] (Simpson AJA).
In those circumstances I have proceeded on the basis of the unchallenged factual findings made by the sentencing judge and also had regard to relevant evidence of post-sentence conduct: DL v R (2018) 265 CLR 215; [2018] HCA 32 at [9]. I have, however, put to one side the sentencing judge's finding that the complainant was "under the offender's authority" at the time of his offending.
The applicant was arrested on 18 June 2019.
He relies upon his affidavit filed on 16 August 2023. He sets out that he has been making efforts to improve his English language skills in custody. He also sets out that his wife and children are only able to contact him by telephone and at a weekly AVL session (as his children are not permitted to visit him in person), that his wife has to look after their three children on her own, and that he is unable to see his parents who live in Turkey. He also gives evidence of the difficulties he faced whilst incarcerated during the COVID pandemic. He describes how he had to spend 14 days in his cell (either alone or with a cell mate) as a quarantine measure on three separate occasions. He has spent a total of 100 days in a locked down state due to circumstances among the inmates.
The applicant has had his Australian Visa cancelled. This prevents him going between areas within the correctional centre or going out of the correctional centre for outdoor activity or to take part in various programs offered. It also precludes him from getting a job whilst in custody or undertaking courses around Australian citizenship that he had been interested in participating in.
He also describes what he interprets as racism towards him which he believes is due to his background and Islamic faith. He says he is fearful that others in the correctional centre will discover the nature of his conviction and that this will lead to violence towards him.
The applicant says in his affidavit that whilst in prison he has been diagnosed with high blood pressure, cholesterol, diabetes, alopecia and schizophrenia. He says he experiences symptoms of hearing voices that follow him and give him instructions. He has not adduced any medical evidence as to these matters.
Some of the matters raised in the applicant's affidavit reflect evidence already before the sentencing judge. Thus, a letter of 1 August 2022 from the applicant's wife, which was before the sentencing judge, speaks to the difficulties for the applicant's wife and children arising out of his incarceration. She says that the applicant was an emotionally attached parent who had been taking care of his household with love and compassion. Reports dated 9 April 2020 and 29 August 2021 from Dr Andrew Ellis, also before the sentencing judge, identify as a matter of generality the impact the COVID pandemic was likely to have on the mental health of prisoners. These reports identify anticipated limits on access to exercise, training and education within prisons, reduced access to visitors and the impact of prisoners being kept in quarantine to reduce spread of the virus.
At the sentencing proceedings the applicant also relied upon a psychological assessment report dated 27 July 2022 from Andrew Wong, psychologist. Mr Wong described that the applicant became teary when discussing his children. He diagnosed the applicant as suffering from F43.8 Other Specified Trauma- and Stressor-Related Disorder. This was caused by the significant pressure and stress caused by the separation from his family, the criminal proceedings, and the possibility of his deportation. Mr Wong's opinion was that the applicant's health is vulnerable by reason of his poor command of the English language, which leads to social isolation and an inability to assert his needs. His inability to work and provide for his family adds to his vulnerability, due to his knowledge that his family is struggling financially. Mr Wong also records that the applicant was, at age 21, diagnosed with high cholesterol due to stress and that he showed him receding facial hair patches and bald patches on the side and top of his head which he said had only commenced after his incarceration.
In McKinnon v R [2020] NSWCCA 106 at [32] (Payne JA, Beech-Jones and N Adams JJ agreeing), this Court noted that an absence of social and family visits due to the COVID-19 pandemic is a relevant consideration in the sentencing exercise: "The applicant, in common with other prisoners in New South Wales during the COVID pandemic, has been in physical isolation from the outside world, although more recently, he has been able to have video contact with his family. The evidence on resentence demonstrates that the effect of the applicant's imprisonment on his wife and children has been significant. Whilst none of this evidence is evidence of extraordinary hardship, the more onerous conditions of incarceration due to the pandemic nonetheless should be taken into account in sentencing: Scott v R [2020] NSWCCA 81."
The two offences contrary to s 66A(1) of the Crimes Act each carry a maximum penalty of 25 years imprisonment with a standard non-parole period of 15 years. The facts as found by the sentencing judge are fully set out in her Honour's remarks on sentence. As these are not challenged I will adopt, but not repeat, those facts for the purpose of resentence.
The following is intended merely as a summary of key matters and not as a comprehensive account of the facts that form the basis of resentence.
First, the two counts are part of a single incident.
Second, the digital penetration continued for about 15 minutes. During this time the complainant told the applicant that he was hurting her and he slapped her telling her that she was giving him a headache and to shut up. The applicant punched her arm and left a bruise after her leg hit his nose. The applicant threatened to kill the complainant and her mother if she told someone what he was doing. The offences thus involved the actual or threatened use of violence, an aggravating feature under s 21A(2)(b) of the Sentencing Act.
Third, this occurred at about 8:00pm on an evening between 1 June 2013 and 20 October 2015 when the complainant was aged between the age of seven and nine years.
Fourth, the applicant was plainly in a position of trust in relation to the complainant. He abused that trust. That is an aggravating feature under s 21A(2)(k) of the Sentencing Act.
Fifth, the applicant is approximately 25 years older than the complainant who was aged close to the age threshold for this offence.
Sixth, there was some evidence of planning as the applicant orchestrated a trip to McDonald's in the complainant's mother's car but the planning was far from sophisticated.
Seventh, as the sentencing judge found, this was not an isolated incident of offending against the complainant. This finding was not challenged before this Court.
The applicant's offending was plainly serious. As set out in DH v R [2022] NSWCCA 200 at [33] (Harrison J, Fagan J agreeing, Yehia J agreeing, with additional comments at [58]-[59], [62]) the Court is not obliged, when sentencing, to indicate where on the scale of objective seriousness each offence falls when dealing with offences, such as these, that carry a standard non-parole period. In this case, as in DH v R, nothing can be gained from any further characterisation of relative seriousness.
As did the sentencing judge, I find that the applicant's moral culpability is high.
I have also had regard to the complainant's victim impact statement dated 18 August 2022. This demonstrates how she felt terrified and trapped for a long time before she informed her school counsellor in 2019 of the abuse. She also describes her fear, ongoing nightmares and anxiety.
The applicant has one previous offence of driving with a mid-range level of alcohol in his blood in 2014 for which he was fined and disqualified. There are also letters from a migration agent and from the applicant's wife speaking positively of his character. However, as set out above, this offending was not an isolated incident. In these circumstances, the applicant is entitled to some, but not significant, leniency on account of prior good character.
I have also had regard to the subjective features as identified by the sentencing judge and to the report of Mr Wong referred to above. In addition, I have considered the more specific evidence in the applicant's affidavit of the impact upon him of incarceration during the COVID pandemic, his perceptions of racism, his ongoing health issues (albeit that his evidence of being diagnosed with schizophrenia, high blood pressure and diabetes is not supported by medical evidence and can thus be given little weight) and the restrictions on his activity and employment opportunities associated with his immigration status. I have also taken into account that he has taken steps to improve his language skills whilst in custody and that he has completed courses on "Working Safely: A Guide to Safe Working Practises" and "Theory in Hygiene Operations".
The applicant has not expressed any remorse and there is nothing before the Court which suggests that he has any insight into his offending. That is not an aggravating feature but it is well established that remorse, if established, can be relied upon as a mitigating circumstance in sentencing. He has not proffered any explanation for his offending. There is no evidence before the Court addressing his prospects of rehabilitation. There are factors suggesting a motive not to re-offend, being his family relationships and his appreciation of the hardship which his incarceration has caused. I agree with the sentencing judge's assessment, however, that his prospects of rehabilitation are no higher than reasonable.
He is also entitled to a finding of special circumstances, on account of his mental health problems.
Having regard to all of the matters set out above, including the matters incorporated by reference to the sentencing remarks of the sentencing judge, I have arrived at a lesser sentence than that imposed by the sentencing judge. The sentence imposed on the applicant should thus be set aside. The two offences involve distinct offending, albeit that they occurred on the same occasion. They form part of one incident of sexual assault, and have common factors, but they represent two discrete acts of criminality. It is appropriate in those circumstances that the Court impose an aggregate sentence reflecting the criminality of the two separate offences, as discussed by Howie J in Cahyadi v R [2007] NSWCCA 1; (2007) 168 A Crim R 41 at [27]. In determining the appropriate aggregate sentence, I have had regard to notional accumulation, concurrency, and totality. I have had regard to the requirement that the aggregate sentence reflect the total criminality involved: Aryal v R [2021] NSWCCA 2 at [50] (R A Hulme J, Johnson and Wilson JJ agreeing); Noonan v R [2021] NSWCCA 35 at [33], [41] (Beech-Jones J, Bathurst CJ and Wilson J agreeing).
In lieu of the sentence imposed by the primary judge, I propose that the applicant be sentenced to an aggregate sentence of 8 years and 3 months to commence on 5 April 2022, with a non-parole period of 5 years. The non-parole period will expire on 4 April 2027, with the balance of the term expiring on 4 July 2030. The individual sentences that I would indicate in accordance with s 53A of the Sentencing Act, including the indicative non-parole periods, are as follows: 1. Count 3: s 66A(1), Crimes Act 1900 (NSW) - 7 years and 6 months with a non-parole period of 4 years and 6 months. 2. Count 4: s 66A(1), Crimes Act 1900 (NSW) - 7 years with a non-parole period of 4 years and 3 months.

HA v R

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (19 paragraphs)

Parties

Legislation Cited (5)

Cases Cited (44)

Cited By (2)