KAMM, William v. Regina [2007] NSWCCA 201

CATCHWORDS: CRIMINAL LAW - Appeal against conviction - Procedure - Amendment to charge during trial - Amended charge read out to accused and plea taken - Whether necessary for jury to be resworn - Note from jury asserting observation of coaching of one defence witness by another - Direction to jury to disregard observation - Whether jury should have been discharged

LEGISLATION CITED: Criminal Procedure Act 1986 ss.20-22 Jury Act 1977 s.72A

Gilbert v. The Queen (2000) 201 CLR 414 Government Insurance Office of NSW v. Bailey (1992) 27 NSWLR 304 Ibbs v. The Queen (1987) 163 CLR 447 Katsuno v. The Queen (1999) 199 CLR 40 Mackay v. The Queen (1977) 136 CLR 465 Maher v. The Queen (1987) 163 CLR 221 CASES CITED: R v. Ayles [2007] SASC 82 R v. Court (1988) 87 Cr App R 144 R v. Harkin (1989) 38 A Crim R 296 R v. MAJW [2007] NSWCCA 145 R v. Maric (1978) 52 ALJR 631 R v. Martin (2000) 78 SASR 140 R v. White (1987) 49 SASR 154

PARTIES: William Kamm - appellant Regina - respondent

COUNSEL: Mr. P. Byrne SC with Mr. G. Stanton for appellant Ms. D. Woodburne for Crown

SOLICITORS: Macquarie Lawyers for appellant S. Kavanagh for Crown

IN THE COURT OF CRIMINAL APPEAL CCAP 2007/519 DC 04/11/0972

HODGSON JA GROVE J SIMPSON J

Monday 9 July 2007 KAMM, William v. REGINA Judgment 1 HODGSON JA: On 14 June 2005, the appellant was arraigned before Williams DCJ on five charges. 2 Four of them were charges of indecent assault. The first of these (count 1) was in the following terms: That you between the 5th day of July 1993 and the 5th day of September 1993 at Camberwarra in the State of New South Wales did assault [the complainant] and at the time of the assault did commit an act of indecency on [the complainant] in circumstances of aggravation, to wit at the time of the offence [the complainant] was aged under the age of 16 years to wit, aged 15 years. 3 The other three (counts 2, 3 and 5) were in identical terms, except that the dates were respectively between 5 July 1993 and 30 August 1993, between 1 August 1993 and 30 September 1993, and between 1 September 1993 and 30 November 1993. 4 The other charge (count 4) was of aggravated sexual intercourse with a child under 16. It was in the following terms: That you between the 1st day of September 1993 and the 30th day of September 1993 at Nowra in the State of New South Wales did have sexual intercourse with [the complainant] a person over the age of 14 years and under the age of 16 years, to wit aged 15 years in circumstances of aggravation to wit, at the time of the offence [the complainant] was under the authority of William Kamm. 5 The appellant pleaded not guilty to all charges, and was tried before Williams DCJ and a jury of twelve. 6 On 29 June 2005, the ninth day of the trial, it was noted that the appellant had been charged in count 4 in terms of s.66C(4) of the Crimes Act 1900, which did not exist in 1993. What did exist in 1993 was a similar offence under s.66(1) and (2) of the Crimes Act, the difference being that the range of ages under those provisions was 10 to 16 rather than 14 to 16. Over objection by the appellant's Counsel, a charge was read to the appellant in the following terms, and the appellant was required to enter a plea in respect of it: That you between the 1st September 1993 and the 30th September 1993 at Nowra in the State of New South Wales did have sexual intercourse with [the complainant] a person over the age of ten years and under the age of sixteen years, to wit aged fifteen years, in circumstances of aggravation to wit at the time of the offence [the complainant] was under the authority of William Kamm. 7 The appellant then pleaded not guilty to that charge. Thereafter, that charge was treated as count 4. 8 On 8 July 2005, the jury returned a verdict of guilty on all counts. 9 On 14 October 2005, the appellant was sentenced to a total period of imprisonment of 5 years with a non-parole period of 3½ years. There were concurrent sentences of 12 months each in relation to counts 1, 2, 3 and 5; and a sentence on count 4 of 4 years, with a non-parole period of 2½ years, to begin at the conclusion of the 12-month sentences. 10 The appellant appeals against his convictions, and seeks leave to appeal against the sentence on count 4. 11 There was some delay in providing grounds of appeal in this case. The notice of intention to appeal was filed on 11 November 2005. On 28 July 2006 time was extended for provision of the grounds of appeal to 30 September 2006. In October 2006, the Registrar did not grant a further extension, and said that an application should be made to the Court at the hearing. Grounds and submissions were provided in February 2007. In my opinion, this Court should grant any necessary extension of time.

CROWN CASE 12 The grounds of appeal in this case are quite limited, and it is not necessary to set out the evidence at length. 13 The complainant was born on 15 May 1978. Her family were strong Roman Catholics, but they became attracted to and involved in a breakaway group. The appellant, also known as "The Little Pebble", had been known to the family since the 1980s, when he would lead prayer days at Cambewarra. In 1991, the family moved to a property at Cambewarra, known as the St. Charbel Community, which was led by the appellant. 14 According to evidence given by the complainant and her mother, in about 1991 the appellant returned from Germany, and some time after that he began to prophesy that there would be a new holy era when he would have twelve queens and 72 princesses, who would assist in bringing forth his children who would be called an immaculate race. 15 In a letter to the complainant dated 5 July 1993 the appellant wrote that the complainant was to be one of his wives. 16 The complainant gave evidence that one evening between 5 and 11 July 1993, she went to the appellant's office in the building where he lived. The appellant's wife and sister-in-law were in another room. After she sat down, the appellant came to her, held her, pressed his body on to hers, and passionately kissed her using his tongue (count 1). The appellant wrote her a letter dated 11 July 1993 in which he said "Our first kiss was lovely … I know you felt it unusual because wife 1-2 were in the other room". 17 Within a few weeks, the complainant was again in the appellant's office. The appellant kissed the complainant using his tongue, and touched her arms and breasts and upper part of her body in a gentle and caressing way (count 2). 18 On an occasion in July or August 1993, the appellant drove to Wollongong. During that trip, the appellant rubbed her leg near the groin, and whenever they stopped he leaned across and kissed her using his tongue and fondled her breasts and shoulders (count 3). The appellant wrote her a letter dated 7 August 1993 in which he said "Thanks for coming with me to Wollongong … I hope I didn't stir you up too much by touching your leg - you have such sexy legs". 19 The complainant gave evidence that, one afternoon in September 1993, the appellant picked her up from Bomaderry TAFE, and drove towards Nowra TAFE where he was to pick up another girl, his wife's sister A. When they were about one kilometre away, he stopped the car. He leaned over and kissed the complainant with an open mouth using his tongue. He moved his right hand under her skirt and rubbed her groin, and then moved her underpants to the side and inserted his finger inside her vagina (count 4). After this had gone on for about 15 minutes, he drove on to pick up A, the time then being about 4pm. 20 The appellant wrote the complainant a letter dated 28 September 1993 in which he said: That day that I was with you you gave me so much joy if you only knew what was in my heart I could have made love to you there and then but it was not the time or place … If I can I will try to be with you for a little while, maybe tomorrow. I could pick you up after Tech as I need to Pick up my Car, let me know tonight if you can and the time. I would like another session like the last if I could before I go so your desire for me will be unbarable (sic). 21 Around September 1993, the appellant visited the complainant in her house. He came to her bedroom and fondled her breasts and rubbed her upper body (count 5). 22 There were other letters from the appellant to the complainant put into evidence, and also letters from the complainant to the appellant in 1993 in which the complainant spoke of her support, friendship and love for the appellant. 23 By October 1994, the complainant had changed her mind about becoming a queen and she left the community. In the second half of 1998, her mother took her to see a sexual assault councillor. The complainant made her first statement to the police on 26 July 2002. Two days earlier, she had spoken about the appellant to a Channel 7 television reporter, and she was later paid $7,500.00 for participating in a television program.

APPELLANT'S CASE 24 The appellant did not give evidence. The complainant's version of events, particularly in relation to count 4, was challenged in cross-examination, inter alia on the basis of discrepancies between her evidence and other statements she had made. It was contended that such kissing as occurred was not indecent. 25 Two witnesses were called for the appellant. Most relevant was his wife's sister A, who gave evidence that in the second half of 1993 she did a computing skills course at Nowra TAFE, which was an evening course from 6pm-9pm, that her father would pick her up from TAFE, and that she was never picked up by the appellant, either alone or with the complainant.

GROUNDS OF APPEAL 26 The appellant's appeal against conviction is on the following grounds: Ground One The learned trial judge erred in permitting the Crown Prosecutor to amend the indictment, following the close of the Crown case and during the presentation of evidence for the defence, by changing the terms of count four on the indictment, in such a manner that it required the applicant to be re-arraigned in relation to that count alone. Ground Two The trial proceedings on count four were a nullity in that, following the re-arraignment of the appellant on that count, he was never put in charge of the jury, nor were the jury ever properly sworn by being required to take an oath to bring in a verdict according to the evidence on that count. Ground Three The trial proceedings miscarried, and the learned judge erred in failing to discharge the jury, after the jury sent in a note, during the course of evidence being given by a witness called by the defence, disclosing the fact that one or more members of the jury had apparently formed the view that a witness who had been called by the defence was being "coached" by another defence witness. Ground Four The directions given by the learned trial judge seeking to address the problem created by the action taken by the jury described in ground three above were inadequate and insufficient to overcome what is contended to be the overwhelming prejudice and unfairness created by the incident referred to. The perception of prejudgment by the jury of the weight to be given to evidence given by witnesses for the defence was in all the circumstances irremediable. Ground Five The verdicts of the jury on all of the counts on the indictment are unreasonable having regard to the evidence: s.6(1) Criminal Appeal Act 1912. 27 The application for leave to appeal against sentence is on the following ground: Ground One The sentence imposed on count four in the indictment is manifestly excessive having regard to the matters that are relevant to be taken into account in the assessment of an appropriate sentence. 28 I will consider in turn the issues relating to the amendment (grounds 1-2), the jury note (grounds 3-4), the question whether the verdict was unreasonable (ground 5) and the sentence.

AMENDMENT OF COUNT 4 29 The Criminal Procedure Act 1986 contains provisions concerning amendment in ss.20-22: 20 Amendment of indictment (1) An indictment may not be amended after it is presented, except by the prosecutor: (a) with the leave of the court, or (b) with the consent of the accused. (2) This section does not affect the powers of the court under section 21. (3) For the purposes of this section, an amendment of an indictment includes the substitution of an indictment.

21 Orders for amendment of indictment, separate trial and postponement of trial (1) If of the opinion that an indictment is defective but, having regard to the merits of the case, can be amended without injustice, the court may make such order for the amendment of the indictment as it thinks necessary to meet the circumstances of the case. (2) If of the opinion: (a) that an accused person may be prejudiced or embarrassed in his or her defence by reason of being charged with more than one offence in the same indictment, or (b) that for any other reason it is desirable to direct that an accused person be tried separately for any one or more offences charged in an indictment, the court may order a separate trial of any count or counts of the indictment. (3) If of the opinion that the postponement of an accused person's trial is expedient as a consequence of it having amended an indictment or ordered a separate trial of a count, the court may make such order as appears necessary. (4) An order under this section may be made either before trial or at any stage during the trial. (5) The following provisions apply if an order is made under this section for a separate trial or for the postponement of a trial: (a) if the order is made during the trial, the court may order that the jury be discharged from giving a verdict: (i) on the count or counts in respect of which the trial is postponed, or (ii) on the indictment, as the case may be, (b) the procedure on the separate trial of a count, and the procedure on the postponed trial, are to be the same in all respects (if the jury has been discharged) as if the trial had not commenced, (c) subject to the Bail Act 1978, the court may commit the accused person to a correctional centre. (6) Any power of the court under this section is in addition to and not in derogation of any other power of the court for the same or similar purposes.

22 Amended indictment (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. 30 The Jury Act 1977 provides for the juror's oath or affirmation in s.72A: 72A Juror's oath or affirmation (1) The form of oath or affirmation to be taken or made by a person before serving as a juror is an oath or affirmation that the person will give a true verdict according to the evidence. (2) The oath or affirmation may be administered, taken or made in the manner provided for by the Oaths Act 1900 or in the prescribed manner. (3) For the purposes of this section, the prescribed manner of administering, taking or making the oath or affirmation is: (a) the person taking or making the oath or affirmation repeats the words of the oath or affirmation, or (b) the officer administering the oath or affirmation repeats the words of the oath or affirmation and the person taking or making the oath or affirmation indicates his or her assent to the oath or affirmation by uttering the words "So help me God" (in the case of an oath) or "I do" (in the case of an affirmation). (4) The words of the oath or affirmation are the following words, or words to the following effect: (a) "I swear by Almighty God that I will give a true verdict according to the evidence" (in the case of an oath), (b) "I solemnly and sincerely declare and affirm that I will give a true verdict according to the evidence" (in the case of an affirmation). (5) If an oath is administered, taken or made in the prescribed manner, it is not necessary that a religious text be used by the person who is taking the oath. (6) If an oath is taken by a person before serving as a juror, the fact that the person taking it did not have a religious belief or did not have a religious belief of a particular kind does not for any purpose affect the legality or validity of the oath. (7) An oath or affirmation taken or made by a person before serving as a juror is not illegal or invalid by reason of a failure to administer, take or make the oath or affirmation in accordance with this section.

Submissions 31 Mr. Byrne SC for the appellant submitted that the jury had been sworn to try the appellant on the charge contained in the original count 4; that the appellant had been re-arraigned on the amended charge and pleaded not guilty to that charge; that accordingly, it was necessary that he then be placed in charge of the jury and that the jury be sworn to try him on that amended charge; and that since this had not happened, the trial process was flawed in a fundamental respect. He relied on Maher v. The Queen (1987) 163 CLR 221 and Katsuno v. The Queen (1999) 199 CLR 40. 32 Maher v. The Queen was a Queensland case in which an accused had been arraigned on 19 counts, and pleaded not guilty. The jury was sworn and empanelled. Subsequently, the Crown sought to add two counts, and the accused was re-arraigned on those new counts. The accused pleaded not guilty to those counts, and was then put in charge of the jury in respect of all counts. However, no further opportunity was given to the accused to make challenges to the jury, and the jury was not sworn to try issues arising from the accused's pleas to the additional counts. The accused was convicted on one of the additional counts. The High Court allowed the appeal against his conviction on that count. 33 At p.232, the High Court said this: The only issues which a jury could have been sworn and empanelled to try on 10 May were the issues then raised by the applicant's pleas to the nineteen counts then charged in the indictment. Those were the issues on which the jury were entitled and could be charged to return their verdicts. If, at trial, any of the conditions prescribed by s.21A of the Crimes Act or s.572 of the Code had been satisfied, it would have been open to the court to order the indictment to be amended pursuant to that provision. The trial would have proceeded upon the amended indictment. Had the indictment been amended pursuant to s.572, the same consequences would have ensued "in all respects and as to all persons, as if the indictment had been originally in its amended form". It would not have been necessary to empanel a new jury (unless the court otherwise directed) or to reswear the original jury to try the issues arising on the amendment. It may be that the same consequences would have ensued had the indictment been amended pursuant to s.21A of the Crimes Act but, for the reasons next appearing, it is not necessary to consider that question. 34 At p.234, the High Court said this: The principle is clear. A jury must be sworn to try the issues joined between the Crown and the applicant on a count then appearing in an indictment. Here the jury found the applicant guilty of the offence charged in count 20, though it had not been sworn to try the issues on that count. A conviction founded on that verdict cannot stand. There was a failure to observe the requirements of the criminal process in a fundamental respect. 35 Mr. Byrne submitted that these principles applied to the present case.

Decision 36 In my opinion, there is a real question whether any amendment was necessary in this case. The issues joined on the charge as framed, if found by the jury against the appellant, were sufficient to establish the guilt of the appellant of an offence as existing at the time of its commission. The age of the complainant was charged at 15, and that was within the relevant range specified for the offence as it was at the time of the events in question, as well as within the range for the offence as originally charged: cf. R v. MAJW [2007] NSWCCA 145 at [24]. 37 Mr. Byrne accepted that the indictment could have been amended pursuant to ss.20-22 of the Criminal Procedure Act, and the trial could then have proceeded without the appellant being re-arraigned. That concession is plainly correct: s.22 is in similar terms to s.572 of the Queensland Act, referred to in Maher; and the plea of not guilty to the original charge could be taken as a plea of not guilty to the amended charge: see R v. Ayles [2007] SASC 82. 38 However, in my opinion there was nothing untoward in having the amended charge read out and taking a plea to it. I note that s.21 of the Criminal Procedure Act contemplates the addition of counts by amendment, and provides that an order for amendment may be made at any time during the trial. If additional counts are added during a trial, it seems reasonable that these counts should be read out and a plea taken: cf. Ayles at [68]. I note that, even when a trial is postponed following the addition of counts by amendment, s.21(5) does not require re-commencement of a trial if a jury has not been discharged. 39 The High Court in Maher held that the jury in that case had been sworn only to give a verdict on issues already raised. That point does not apply to this case, because even in a case where an amendment adds new counts, s.22(1) of the Criminal Procedure Act still applies. There is in my opinion no reason why an oath or affirmation under s.72A of the Jury Act should not apply to issues arising under the indictment as amended. 40 In the present case, no new counts were added, and the amended count was not different in any material respect from the original count; so the position is even clearer. Whether or not what occurred is correctly described as re-arraignment, it did not take the case out of the regime prescribed by ss.20-22 of the Criminal Procedure Act. 41 Even if there had been a procedural irregularity in this case, it would in my opinion have been immaterial: cf. Mackay v. The Queen (1977) 136 CLR 465. However, for the reasons I have given, I do not consider there was any irregularity.

JURY NOTE 42 On the ninth day of the trial, when the defence case was being presented, the judge received a note from the jury which read: The jurors wish to advise the Court that a number of jurors observed a member from the public gallery coaching the witness while they (sic) were giving evidence, ie mouthing the words then spoken by the witness. 43 The judge subsequently obtained a further note which disclosed that the person in the public gallery was A, the sister of the appellant's wife, who had already given evidence, and the witness was the other witness who gave evidence for the appellant, one Ms. Bos. 44 The appellant's Counsel applied for a discharge of the jury. The judge indicated he would permit the defence to recall both witnesses to deal with issues raised by the jury note. The appellant's Counsel declined and made further submissions. The judge refused the application, and gave the following directions to the jury: Firstly what I want to say to you is that in regard to the note that you have presented and any observations that any of you might have made I want you to disregard them. It has got no relevance to the case and in particular must not be used by you in any way against the accused or against anyone in the accused's case. To begin with what was observed may or may not have been coaching as expressed in the note. It may have been something completely innocent and accidental. Secondly there is nothing to indicate that whatever occurred was observed by the witness Ms Bos and taken heed of by her. Thirdly bear in mind the evidence of the two witnesses in question. There is no cross relationship between that evidence. By that I mean that the evidence that [A] gave and the evidence that Ms Bos gave were about two totally different areas of this case. They weren't giving evidence about exactly the same thing. In fact they were giving evidence about quite different things. Whatever occurred isn't the responsibility of the accused. As you can appreciate he's separated physically from the witnesses as well as from the persons in the public gallery and he has got no control over what any of those persons may or may not do. It would obviously be quite wrong for you to hold anything that occurred against the accused in any way at all. Further you must not infer from anything that may have occurred that indeed any coaching took place. If you think about it as a matter of logic and practicality it would be extremely difficult for one person to coach another in court where the evidence given by the two persons concerned is not the same evidence and indeed as I have said was evidence about totally different topics . What you have got to remember is at the end of the day your duty is to examine the sufficiency of the Crown case against the accused. That is a requirement that you would have whether or not any evidence was called on behalf of the accused. An accused person does not have to call evidence. An accused person is entitled to rely upon the deficiencies in the Crown case. Of course remember I said to you at the very beginning of the trial it is the Crown's responsibility because they bring the accusation to prove each and every one of these allegations against the accused beyond reasonable doubt. So even if there was no evidence from the accused's side of the equation you still have to look at the Crown case and say well are we satisfied beyond reasonable doubt? Because if you are not satisfied beyond reasonable doubt no matter what the accused has done you must find the accused not guilty. Does everyone see that and understand that?

As I said it would be wrong to draw any untoward inference from what you observed against Mr Kamm and indeed against the persons involved because what may have been observed may have a completely innocent explanation. You will have to determine at the end of the day whether in respect of each of the offences that have been charged the separate ingredients for those offences have been made out beyond reasonable doubt. In particular whether the separate facts alleged in respect of each matter have been made out beyond reasonable doubt. And whatever an accused person might do during the course of a trial, whatever any witness an accused person might bring during the course of a trial doesn't relieve you of the job of determining whether the Crown has actually proved the case. The Crown has to prove the case. The accused does not have to prove anything. The accused does not have to disprove anything. It is not for the accused to prove or disprove anything at all. It's for the Crown and the Crown alone to prove the case to you beyond reasonable doubt. If they can't do it that is the end of the matter. You must find the accused not guilty. Does everyone understand that? 45 The judge later gave reasons for his refusal to discharge the jury, saying that nothing extra-judicial had occurred on the part of any juror, that if misinterpretation of an observation had occurred, it had been corrected by directions, and that if there had been an irregularity, which he was not persuaded of, it had been corrected and was not such as would lead to a miscarriage of justice.

Submissions 46 Mr. Byrne submitted that, in order to avoid at least perception of an unfair trial, the judge had no option but to discharge the jury: R v. Maric (1978) 52 ALJR 631. 47 He submitted that the manner in which the appellant's defence was prejudiced was irremediable. A was the most important witness for the appellant, since her evidence called into question the complainant's evidence on count 4, the most serious charge. 48 Mr. Byrne submitted that the jury's note indicated more than an observation about this important witness, namely a conclusion she was doing something improper, thus indicating a real risk of pre-judgment on an important matter that went to the fairness of the trial. Despite the directions given by the judge, there remained a perception that the jury had pre-judged the matter unfavourably to the appellant.

Decision 49 In my opinion, there was plainly nothing improper in the conduct of the jury. 50 Juries are, correctly, encouraged to observe witnesses giving evidence so they can assess their reliability, and in my opinion they are entitled to observe and take into account what witnesses say and do in Court during the hearing when they are not actually giving evidence: cf. Government Insurance Office of NSW v. Bailey (1992) 27 NSWLR 304 at 314. If what is observed was not in view of Counsel, then it may be necessary that it be disclosed and dealt with by evidence and/or submissions: R v. Martin (2000) 78 SASR 140 at [34]; R v. White (1987) 49 SASR 154. 51 In the present case, some jurors expressed a conclusion about A that the judge considered highly improbable, and that might be regarded as the kind of conclusion that, if it is to be drawn, should not be drawn until the end of the case, after the jury has heard all the evidence, submissions and directions. 52 However, it is inevitable that jurors will sometimes form impressions of witnesses as they give evidence, and sometimes those impressions might be ones the judge would disagree with. But the assessment of witnesses is a matter for the jury; and the fact that jurors may form impressions, even strong impressions, about witnesses as a case proceeds, is not a reason for thinking they will not do their duty and come to a conclusion at the end of the case having regard to all the evidence, submissions and directions, and if appropriate, revise or give up impressions formed along the way. 53 If as in this case the judge is told by the jury of observations or conclusions that the judge thinks are highly improbable, particularly if these observations or conclusions relate to matters where the judge's experience of trials and the conduct of witnesses can be relevant, it may be appropriate for the judge to express his or her view and to warn the jury against acting on those observations or conclusions. In this case, if anything, the judge's directions were too favourable to the appellant, in that they gave an unequivocal direction that the observations had no relevance and that the jury should disregard them. 54 The fact that the jury drew the judge's attention to the matter does not, in my opinion, indicate prejudice or pre-judgment. On the contrary, it rather suggests that the jury was very concerned to act fairly and without pre-judgment, and to obtain guidance from the judge. The judge then gave strong directions on the matter, and it should not be assumed that the jury did not act on those directions: Gilbert v. The Queen (2000) 201 CLR 414 at 425. 55 For those reasons, I would reject this ground of appeal.

UNREASONABLE VERDICT Submissions 56 The appellant's submissions were limited to counts 1 and 4. 57 In relation to count 1, Mr. Bryne submitted that, for there to be an indecent assault, there must be a sexual connotation: R v. Harkin (1989) 38 A Crim R 296 at 301-2, R v. Court (1988) 87 Cr App R 144. He submitted that the act of the appellant in kissing the complainant did not unequivocally have a sexual connotation. Although the act may have been unwelcome and offensive, it was not open to the jury to find beyond reasonable doubt that it was indecent. 58 In relation to count 4, Mr. Byrne submitted that the evidence of A, supported by documentary evidence, was that she never attended a daytime course in the calendar year when it was alleged the act of sexual intercourse occurred. There was no rational basis for the jury to reject her evidence, so the verdict on count 4 was unreasonable.

Decision 59 On count 1, in my opinion the sexual connotation of the act was indicated by its nature as described by the complainant, as passionate kissing using the appellant's tongue, and by letters written by the appellant to the complainant both before and after the event, which strongly supported the inference that his purpose was sexual gratification. It was also relevant to the question of indecency that the appellant was a religious leader of a group that included the complainant, and that he was 43 years old and married, whereas the complainant was a 15 year old schoolgirl. In my opinion it was clearly open to the jury to be satisfied beyond reasonable doubt that the act did amount to indecent assault. 60 On count 4, the documentary evidence relied on by the appellant was contradicted by the campus manager of TAFE Nowra Campus, to the effect that, despite what the documents showed, the relevant course was available day or evening. At the trial, the Crown also relied on inconsistencies in A's evidence and her relationship to the appellant. 61 In my opinion, it was open to the jury to be satisfied beyond reasonable doubt that the assault in count 4 did occur as described by the complainant.

SENTENCE Submissions 62 Mr. Byrne submitted that the act of digital penetration was significantly less serious than many, if not most, of sexual acts within s.66C(2) of the Crimes Act 1900: Ibbs v. The Queen (1987) 163 CLR 447 at 452. The victim was close to 16. There was no suggestion that count 4 was representative of a course of conduct; on the contrary, the more serious conduct in count 4 was an isolated act. The appellant had no previous convictions. The fact that the appellant asserted his innocence was not an aggravating factor. 63 Also, Mr. Byrne submitted, all offences occurred within the period July to November 1993, and represented a single episode of criminality. The sentences should therefore all have been ordered to be served concurrently.

Decision 64 There was no suggestion of error in the reasons of the trial judge. 65 The trial judge did not treat the appellant's assertion of innocence as an aggravating factor. However, it did mean that the appellant could not have the benefit of any reduction of the sentence by reason of a plea of guilty or remorse. 66 The other factors mentioned by Mr. Bryne were taken into account by the trial judge. Also, the trial judge correctly took into account that the offences were "inexcusable and gross breaches of trust" and had serious impacts on the complainant. 67 Although count 4 was more serious than the other counts, it could not be regarded as an isolated out-of-character act, having regard to the conduct referred to in the other counts. The appellant's lack of insight into his offending was relevant to his risk of re-offending and the need for specific deterrence. 68 It was within the discretion of the trial judge to make the sentence on count 4 cumulative, as it was a matter involving a different level of criminality. The result was a total sentence which appropriately reflected the appellant's total criminality. 69 The appellant has not shown that the sentence was excessive.

ORDERS 70 I propose the following orders: 1. Appeal against conviction dismissed. 2. Leave to appeal against sentence granted, and appeal against sentence dismissed. 71 GROVE J: I agree with Hodgson JA. 72 SIMPSON J: I agree with Hodgson JA. **********

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