KBR v Tasmania [2025] TASCCA 10

Criminal Law - Appeal and new trial - Verdict unreasonable or insupportable having regard to evidence - Leave to Appeal refused - Appellant sought leave to appeal on the basis that his witnesses' evidence contradicted the complainants' - Whether competing accounts must have raised a reasonable doubt - Credibility and reliability of oral testimony matters for the jury - No power to intervene unless, by reason of other matters, the jury must have been left with a reasonable doubt- Jury entitled to accept the evidence of all six complainants - Evidence of the appellant's guilt was strong - No possibility that an innocent person was convicted - Appeal against sentence on the grounds it was manifestly excessive dismissed.

Aliano v Tasmania [2025] TASCCA 4; PAC v State of Tasmania [2024] TASCCA 12; AWK v Tasmania [2024] TASCCA 5; Pell v The Queen [2020] HCA 12, 268 CLR; Chidiac v The Queen [1991] HCA 4; (1991) 171 CLR 432; Chamberlain v The Queen [No 2] [1984] HCA 7; (1984) 153 CLR 521; Libke v The Queen [2007] HCA 30; 230 CLR 559, considered.

Criminal Law - Appeal and new trial - Appeal against sentence - Grounds for interference - Sentence manifestly excessive or inadequate - Appellant found guilty by jury - Convicted of eight counts of indecent assault, four counts of rape, one count of indecent act with or directed at a child and two counts of persistent sexual abuse of a child - Sentenced to 21 years' imprisonment and not eligible for parole until 13 years served - Appellant submitted age and health were not given sufficient weight - Relevant question whether sentence was unreasonable or plainly unjust - Comparative sentencing data of limited use - Sentence was within sentencing judge's wide sentencing discretion - Conformable with like sentences - Sentence not manifestly excessive - Appeal against sentence dismissed.

DPP v Pearce (2016) 28 Tas R 1; House v King (1936) 55 CLR 499, applied.

R v Kilic [2016] HCA 48; (2016) 259 CLR 256, referred to.

Respondent: Office of Director of Public Prosecutions

Judgment Number: [2025] TASCCA 10

1. Leave to appeal against conviction is refused.
2. Appeal dismissed.

1. At the hearing of this appeal the Court refused leave to appeal against conviction and dismissed the appeal against sentence. I have had the benefit of reading the reasons of Estcourt J with which I concur, and which reflect my reasons for joining in the orders of the Court.

1. On 30 October 2023, the appellant KBR (a pseudonym adopted by the learned trial judge), having been found guilty by a jury, was convicted of eight counts of indecent assault, four counts of rape, one count of an indecent act with or directed at a child and two counts of persistent sexual abuse of a child. The crimes were committed intermittently over a 23-year period, against six different child complainants, two of whom were the appellant's biological children and four of whom were his grandchildren or step-grandchildren.
2. The learned trial judge, Jago J, sentenced the appellant to imprisonment for 21 years and ordered that he not be eligible to apply for parole until he had served 13 years of that sentence.
3. The appellant appealed against the convictions and sentence ordered by her Honour on the grounds that he was "wrongfully convicted" and that the sentence imposed was manifestly excessive. I note that the appellant has not referred to the four counts of rape included in her Honour's orders however that was an oversight, and on the hearing of the appeal on 3 July 2025 the notice of appeal was amended to include the four counts of rape.
4. In law, the appellant's appeal to this Court was an appeal as of right against his sentence but an application for leave to appeal against his convictions. Section 401 of the Criminal Code provides as follows:

(1) A person convicted before a court of trial may appeal to the Court -

(a) against his conviction on any ground which involves a question of law;

(b) with the leave of the Court, or upon the certificate of the judge of the court of trial that it is a fit case for appeal, against his conviction upon a ground of appeal -

(ii) which involves a mixed question of fact and law;

(iii) which appears to the Court to be a sufficient ground of appeal; and

(c) against the sentence passed on his conviction, unless the sentence is one fixed by law." (Emphasis added.)

1. On the hearing of the appeal the Court ordered that leave to appeal against conviction was refused and that the appeal against sentence was dismissed. These are my reasons for joining in that order.

1. The law in relation to a ground of appeal of this nature was recently encapsulated by Pearce J in Aliano v Tasmania [2025] TASCCA 4 at [25]- [26] as follows:

"25 The assertion that a verdict is unsafe and unsatisfactory finds statutory expression in this State in the Criminal Code, s 402(1), which provides that the Court 'shall allow the appeal if it is of opinion that the verdict of the jury should be set aside on the ground that it is unreasonable or cannot be supported having regard to the evidence.' The approach that an appellate court must take when addressing 'the unreasonableness ground' was authoritatively stated in the joint reasons of Mason CJ, Deane, Dawson and Toohey JJ in M v The Queen [1994] HCA 63; 181 CLR 487 at 493. The court must ask itself:

'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'.

1. As explained in M, and restated in MFA v The Queen [2002] HCA 53, 213 CLR 606, and in Pell v The Queen [2020] HCA 12, 268 CLR 123 at [43], the question does not depend on whether, as a matter of law, there is evidence to support the verdict, but rather whether the evidence required the jury, acting rationally, to have entertained a doubt as to the appellant's guilt. An appellate court must conduct an independent review of the evidence, but making full allowance for advantages enjoyed by the jury, including from having seen and heard the witnesses. Because of the central role of the jury in the administration of criminal justice, this Court is not to substitute trial by an appeal court for trial by jury: R v Baden-Clay [2016] HCA 35, 258 CLR 308 at [65]- [66]. The court must proceed on the basis that issues of credibility and reliability of oral testimony are matters primarily for the jury. The function of this Court is then to examine the record to see whether, notwithstanding that assessment, either by reason of other evidence, inconsistencies, discrepancies, or other inadequacy, the court is satisfied that the jury, acting rationally, ought nonetheless to have entertained a reasonable doubt as to proof of guilt: Pell at 145 [39]." (Emphasis added.)
2. In my view, for the reasons that follow, no jury acting rationally could have entertained a reasonable doubt as to the appellant's guilt and leave to appeal should be refused. The appeal against sentence should be dismissed.
3. Once again, I note, as was noted by this Court in PAC v State of Tasmania [2024] TASCCA 12, a refusal of leave to appeal in this case should be seen as an expression of my view that the proposed appeal against conviction was wholly unarguable and should have been recognised as such by the appellant's counsel. Appeals so brought, unnecessarily tax judicial resources, as may be seen from the long and detailed reasons for judgment required of Wood J in AWK v Tasmania [2024] TASCCA 5. Once again, I am obliged to observe that care must be taken by counsel, as officers of the Court, to identify and advance only arguable grounds of appeal. A failure to do so is a breach of counsel's ethical obligations.

1. In order to put it in a framework, the argument of counsel for the appellant that "the jury were left with competing accounts which should have raised a doubt", it is useful to commence by setting out the learned trial judge's findings of fact consistent with the jury verdicts. I will use the pseudonyms adopted by her Honour. Her Honour said:

"It is for me to find facts for sentencing purposes consistent with the jury verdicts. For the purpose of determining such facts, I may only make findings adverse to the appellant if satisfied beyond reasonable doubt they have been proved, and I may only make findings of fact in his favour if they are proved on the balance of probabilities. It is obvious from the verdicts that the jury, or in one instance the majority of the jury, were satisfied beyond reasonable doubt of the truth and reliability of the evidence of the respective complainants. I am also satisfied of the truthfulness and reliability of the testimony of each complainant, and I will sentence on the basis that each of the unlawful sexual acts, which they described in their evidence, and which constituted each respective crime committed by the appellant happened as the complainant described."

1. The learned trial judge in sentencing found that the first series of crimes committed by the appellant occurred between 1 December 1996 and 12 March 1997. In that period, he indecently assaulted his biological daughter, R, three times across two occasions. R was 15 years old and had just finished Grade 10. The first occasion occurred when R and the appellant were alone at her grandmother's house. In the lead up to this, there had been an occasion when the appellant and R had gone for a drive and the appellant had shown her pornographic magazines. Her Honour was satisfied that was an endeavour by the appellant to groom R into accepting as normal the behaviour he intended to perpetrate upon her. At the grandmother's house, the appellant pushed R onto the bed, placed his hands down her pants and underwear and touched her on the vagina. He rubbed the outside of her vagina. R removed herself from the bed and left the room. The appellant persisted in his behaviour, came up behind her, grabbed her from behind, and again put his hand down her pants and underwear and touched her on the vagina. He rubbed her vagina on the outside. He removed his penis from his clothing, grabbed hold of R's hand and placed it upon his penis. He moved her hand back and forth on his penis whilst still touching her vagina. After the incident finished, the appellant told R that she was not to say anything to her mother because if she did, her mother would leave and R would no longer have a mother. That behaviour constituted two counts of indecent assault.
2. The third count of indecent assault committed against R occurred on an occasion when the appellant and R were alone together in a motor vehicle. R was seated in the driver's seat and the appellant was instructing her on her driving. He reached over and put his hand under her skirt and underwear and touched her on the vagina. He rubbed the outside of her vagina. After this incident ended, the appellant took R to a job interview and behaved as though what he had done to her was normal.

1. The learned trial judge found that the next child the appellant sexually assaulted was his biological son, A. Between 1 January 1996 and 31 December 1997, when A was 12 to 13 years of age, the appellant committed acts of indecent assault and rape against A on two separate occasions.
2. The first of those occasions occurred at the family home. Prior to this incident occurring, there had been an occasion in which the appellant had called A up to his bedroom, put on a pornographic movie, and masturbated his own penis in the presence of A, telling A it was okay for him to do likewise.
3. Again, her Honour was satisfied that was indicative of the grooming behaviour the appellant engaged in prior to his abuse of his victims. Shortly after that incident, the appellant invited A to his bedroom. There was a pornographic movie playing. The appellant removed his penis and began to masturbate himself. He then grabbed hold of A's wrist, placed A's hand onto his penis and moved A's hand backwards and forwards in a masturbating motion. That behaviour amounted to the first count of indecent assault committed upon A. The appellant then pushed A onto the bed, pulled his trousers down and inserted his penis into A's anus. He penetrated him for one to two minutes. The act of anal rape was painful for A. Afterwards, he told him to go and "clean himself up, keep his mouth shut and not tell anyone".
4. Following this incident, the appellant displayed further sexualised behaviour towards A. On one occasion he invited A into the bathroom to wash his back. The appellant masturbated himself whilst in the bath and then made a joke about how the ejaculate appeared in the water. No criminal charge arose as a result of that act, but her Honour again found that it was indicative of the sexual interest and sexualised behaviour the appellant displayed towards his victims.
5. The next occasion of sexual abuse against A occurred in the bathroom of the family home. The appellant had asked A to assist him in washing his back. As A was doing this, the appellant began to masturbate himself. He then took hold of A's hand, placed it upon his penis and moved A's hand back and forth in a masturbating motion. This behaviour amounted to the second occasion he committed an indecent assault upon A. The appellant then instructed A to put his penis into A's mouth and told him to "suck it like a lollypop". This behaviour amounted to the crime of rape. This crime ended when the appellant removed his penis from A's mouth and ejaculated into the bath. Following this incident, he told A to keep his mouth shut and threatened him that, if he told anyone, he would be taken away and there would be no one to look after the children. That comment was made in the context of the appellant's wife having a serious illness, which prevented her from undertaking a number of care duties in respect to the children. After these crimes were committed the appellant gave A cigarettes and other treats. He behaved towards him as though everything was perfectly normal.

1. The next victim of the appellant's sexual abuse was his step-grandson, C. C's father was the appellant's step-son. Between January 2009 and December 2010, when C was aged approximately 12 to 13 years, the learned trial judge found that the appellant committed three crimes against C.
2. The first occasion occurred at the appellant's home when the appellant and C were alone at the residence. The appellant put a pornographic movie on and invited C to sit with him and watch it. Whilst they were watching the movie, the appellant exposed his penis and masturbated himself. He told C that it was okay and that he could do the same thing. C did as the appellant instructed him. This incident finished when the appellant ejaculated in the presence of C. This behaviour amounted to the crime of an indecent act with or directed at a child.
3. The next crime also occurred at the appellant's house when the appellant and C were alone together. The appellant invited C to go to his bedroom. He put a pornographic movie on. The appellant exposed his penis and began to touch himself. He told C to take his pants down and bend over the bed. The appellant then inserted his penis into C's anus. It caused C pain. The act went on for about five minutes. When it finished, the appellant said to C "[I]t didn't hurt that bad did it?....I used lube".
4. The second time the appellant raped C was in a milk truck. At the time the appellant worked as a milk vendor and C had gone with him to assist with deliveries. In the early hours of the morning, the appellant parked the vehicle in a car park and asked C to get in the back of the milk truck with him and get a drink. When C got into the back of the milk truck, the appellant shut the door and instructed C to bend over some milk crates. He pulled his penis out, used spittle on C's anus and placed his penis into C's anus. Again, this was painful for C. Afterwards the appellant behaved towards C as if everything was normal.

1. The next criminal conduct the learned trial judge found perpetrated by the appellant, was against his step-grand-daughter M. M's father was another step-son of the appellant. The appellant maintained a sexual relationship with M between July 2011 and July 2015. M was aged between 7 and 11 when the abuse occurred.
2. The jury were asked to consider three separate occasions on which unlawful sexual acts were committed against M during the relevant period. However, M's evidence made it clear that these were not isolated occasions and that sexual offences of the same nature were perpetrated against her by the appellant on a frequent and regular basis. M described the sexual abuse as happening "a lot", or "about ninety per cent of the time he was there" during the relevant period. Whilst her Honour said that it was impossible to quantify the frequency of the abuse, she accepted the evidence of M that it happened on many occasions and the abuse included the appellant variously touching her to the outside and inside of her vagina with his fingers and his tongue.
3. The specific unlawful sexual acts, which constituted the crime of persistent sexual abuse of a child, as it related to M, are as follows.
4. The first incident occurred at M's father's residence. M was in a bedroom with her younger brother. The appellant and his wife regularly attended the home for a social visit. On this occasion the appellant entered the bedroom and pushed the door so it was largely closed but not latched. M was sitting on the top bed of a set of bunkbeds. The appellant reached up, pulled her pants down and touched the outside of her vagina with his fingers. He rubbed the outside of her vagina before inserting one or two fingers into her vagina. The incident lasted for about five minutes. When it finished, he told M not to tell anyone or she would get into trouble. M's younger brother was in the room when the sexual abuse occurred.
5. The next specified occasion again occurred in the same bedroom in M's father's house. This time M was alone in the room. The appellant entered the room, took M's pants down and used his fingers to touch the outside of her vagina. He then placed his fingers inside her vagina, before using his tongue to lick the outside of her vagina and then lick the inside of her vagina. This episode of sexual abuse went on for approximately 10 to 15 minutes. Again, when it ended, the appellant told M that if she told anyone she would be in trouble.
6. The third specified occasion occurred in the same bedroom at M's father's house. The appellant asked M to go to the bedroom with him, sat her on the top bunk, pulled her pants down, touched the outside of her vagina with his fingers, touched the inside of her vagina with his fingers and then proceeded to lick both the outside and inside of her vagina. Again, when the incident ended, the appellant told M not to tell anyone or she would be in trouble.

1. The next victim of the appellant's sexual abuse was his step-grandchild, H. H's mother was in a relationship with one of the appellant's step-sons, MR. H referred to MR as her father and considered the appellant to be her grandfather. When H was aged between eight and 13, she lived with her mother and MR. During this time, the appellant and his wife would visit. It was on these occasions that he would sexually abuse H.
2. Again, with respect to H, the jury were asked to consider three separate identified occasions on which unlawful sexual acts were committed. Again, however, the learned trial judge noted that H's evidence made it clear that these were not isolated occasions and that sexual offences of a similar nature were perpetrated against her by the appellant on a frequent and regular basis. When H was asked to recall how many times the sexual abuse occurred, her evidence was "too many times to remember". She described it as happening regularly between when she was six and when she was 13.
3. The first specified occasion occurred when H was alone with the appellant at his home. The appellant's wife was at the hospital. The appellant sat H down on a mat in the lounge room, removed her pants and underpants and used his hand to touch her on the vagina. He touched her on both the outside and inside of her vagina. He then used his tongue to lick her on both the outside and inside of her vagina. After the incident ended, the appellant told H not to tell anyone or she would be in "deep shit". H described being petrified after this incident had occurred.
4. The second specified occasion occurred at the home where H was living with her mother and step-father. The appellant was babysitting H and her siblings. The appellant came into a bedroom where H was playing with her brothers. He told her brothers to leave the room and appeared to lock the door. The appellant placed H onto the bunk bed and pinned her down. He then used his hand to touch her on the vagina. He also used his tongue to lick her on the vagina. After this incident occurred, the appellant left the room and acted as though nothing had occurred. H felt very uncomfortable.
5. The third specified occasion occurred at a house where the appellant was living. The appellant took H to the laundry, sat her on the washing machine, held her there, removed her pants and underwear and then used his fingers to touch both the outside and inside of her vagina. He also inserted his tongue into her vagina. After the incident ended, he told H not to tell anyone and to keep quiet about it, or "bad things would happen".
6. The learned trial judge found that it was likely the sexual abuse of M and H was occurring, at least in part, at the same time. Her Honour said that in her view that spoke to the extent of the appellant's sexual interest in young people and also his attitude of entitlement that he might treat children as mere objects to satisfy his sexual interests.

1. The final victim of the appellant's abuse was his granddaughter, G. G's mother was one of the appellant's daughters. On a single day in July 2019, when G was aged 16, the appellant committed three acts of indecent assault upon her. G was, at that time, staying with the appellant and her grandmother. On this day, G was alone in the house with the appellant. Her grandmother had gone shopping. The appellant called G into the bedroom. He had a pornographic video playing on a portable DVD player. He asked G to sit down and watch it with him. Whilst doing so, he asked G questions about whether she was sexually active and whether she liked having sex. Uncomfortable, G got up off the bed and walked from the room. As she did so, the appellant came up behind her and placed her in a bear hug. He placed his erect penis against her bottom and pressed it into her. This behaviour amounts to the first incident of indecent assault.
2. G then moved away to the living room. As she went to sit on a couch, the appellant pulled her down onto his lap. Her back was to his front. The appellant brushed his hand along her thigh and touched her on the vagina, over her clothing. As he did this, the appellant said, "What would you do if I gave you a bit of a tickle?" G responded by saying "It would be weird because you are my Pop". The appellant replied, "That doesn't matter though". This behaviour amounts to the second count of indecent assault.
3. G moved from the couch area into the kitchen. The appellant followed her. He pulled her top out to expose her bra and breasts. He said to her "You have nice tits. I wish you weren't my granddaughter. I would fuck you myself". This was the third incident of indecent assault. Afterwards the appellant told G that she could not tell anyone about what had occurred and if she did, it would ruin his marriage to her grandmother. (G did, in fact, immediately tell a friend about what the appellant had done to her).
4. The learned trial judge recorded that the appellant's offending came to light when M "bravely" made a disclosure to a school counsellor. The matter was reported to police. As the investigation continued it became apparent there were further victims of the appellant's abuse and other members of the family also made disclosures over time.
5. The appellant was interviewed by police on two separate occasions after his alleged conduct came to light. The first interview occurred on 13 September 2019 and related only to M. The second interview occurred on 13 November 2019 and raised a number of the further allegations. The appellant denied any sexual acts towards any of the complainants. He suggested the allegations may be the result of some collusion.

1. Counsel for the appellant, in her written submissions, argued before this Court as follows:

"318 It is accepted that the law in relation to appeals against conviction is relatively settled.

1. The Appellant accepts that the jury were best placed to weigh the evidence against the Appellant.
2. It is also accepted that in this instance the tendency notice would have played a significant part in the jury's analysis of the evidence.
3. The tendency notice did not displace the States obligation to prove the matters beyond a reasonable doubt.
4. Such a doubt should have remained in the jury's minds in relation to the evidence led at trial.

323 The matter was one where the Appellant called evidence.

324 That evidence if accepted refuted many of the allegations brought.

1. Cross examination of defence witnesses did not undermine the evidence given and in no way showed that the evidence being given was incorrect or false.
2. Accordingly, the jury were left with competing accounts which should have raised a doubt."
3. As has already been noted the appellant gave two interviews to police. He denied all allegations and suggested collusion. Each of the complainants gave evidence by way of pre-recording in terms of the findings of fact made by the learned trial judge. The appellant did not give evidence at trial but called three witnesses, his wife, JR, his daughter, RLR, and his son, BR.
4. The appellant's counsel argued in her written submissions:

"327 In particular some of the evidence specifically contradicted the evidence given by various complainants:

1. [R] - her father did not have a key to the residence she said she was abused in at the time of the allegations. [JR] was in the vehicle on the day of the KFC interview.

b [A] - the general evidence of the business of the house.

1. [C] - that he had not stayed overnight and had not been on a milk run.

d [M] - the opportunity for the offending to have taken place.

e [H] - the opportunity for the offending to take place.

1. [G] - the observations of [JR] on the day of the alleged indecent assaults and the motivation to lie as a result of wanting to obtain Centrelink.

1. All of these matters alone and in combination should have resulted in the jury having a doubt regarding the Appellant's guilt to the charges." (Italics added.)
2. As earlier noted, this Court must proceed on the basis that issues of credibility and reliability of oral testimony are matters primarily for the assessment of the jury and must examine the record to see whether, notwithstanding that assessment, either by reason of other evidence, inconsistencies, discrepancies, or other inadequacy, the Court is satisfied that the jury, acting rationally, ought nonetheless to have entertained a reasonable doubt as to proof of guilt.
3. Thus, the appellant's appeal, as articulated in the written submissions of his counsel, is that the witnesses he called raised inconsistencies, discrepancies and inadequacies in the evidence of the six complainants to the extent that it can be said that the evidence required the jury, acting rationally, to have entertained a doubt as to the appellant's guilt. That is to say that the jury must, not might, have entertained a reasonable doubt (Libke v The Queen [2007] HCA 30; 230 CLR 559 at 596-597 [113]), per Hayne J (with whom Gleeson CJ and Heydon J agreed).
4. It is necessary therefore to examine the asserted "contradictions" to see if that can be said of the whole of the evidence in this case.

1. The appellant submits that R is contradicted in her evidence that she was assaulted when she and the appellant were alone at her grandmother's house when the appellant did not have a key to the residence at the time of the allegations.
2. The evidence "in particular" relied upon to establish the contradiction, is that of R's mother who said that she and her husband did not have a key to her mother's unit until 2003.
3. The appellant submits that R is contradicted in her evidence that she was assaulted in a motor vehicle by the appellant prior to being dropped off for a job interview at KFC.
4. The evidence relied on is that of R's mother who said that the appellant had never given R driving lessons and that she had been in the car that day and that she and the appellant had both taken their daughter to the job interview and waited in the car for her.
5. There was also a suggestion implicit in the appellant's submissions that R was lying about the boys going mushrooming on an afternoon with the appellant because mushrooming is a morning activity and that she lied about being with the appellant when he was watering raspberries because she is allergic to bees.

1. The appellant submits that A was contradicted in his evidence by "the general evidence of the business of the house".
2. I take this submission to be a reference to the evidence of the appellant's wife that the appellant would take a bath two to three times a week to ease the pain in his back, and that it was R, in particular, would help him wash his back as the appellant could not reach. The evidence was that the bathroom door would be open on those occasions.
3. I note that the appellant's daughter, called by him, also confirmed that her father had a bad back and would take hot baths and that she would help her father by washing his back, as would her brother A - she also said that the bathroom door was always open when her father took a bath.

1. The appellant submits that C was contradicted in his evidence that he had stayed overnight at the appellant's home and that he had been on a milk run with the appellant.
2. The evidence "in particular" relied upon to establish the contradiction is that of the appellant's wife who said that C had never stayed overnight with her and the appellant, and she did not recall that any of the grandchildren had gone on the milk run with the appellant.
3. There is also reference made to the evidence of C's father that he had no recall of C spending any time alone with his parents or nights at his parents' house.

1. The appellant submits that M and H were contradicted in their evidence because there was no opportunity for the offending to take place.
2. The evidence "in particular" relied upon to establish the contradiction is that of the appellant's wife who said in relation to M that she had no recall of a lock being on the bedroom door in which she slept and that this evidence aligned with other evidence from MR and if M and H were at MR's house to be babysat, "it would be all of them who would be present".

1. The appellant submits that G was contradicted in her evidence by the observations of the appellant's wife on the day of the alleged indecent assaults, and the motivation to lie was "as a result of wanting to obtain Centrelink" and being upset the appellant's wife had said she could live with them.
2. The first of these asserted contradictions is a reference to the evidence of the appellant's wife that she did recall G staying with her and her husband for one night on an occasion, but that at the time of the alleged assaults, she had left the house on the day for only 25 minutes and that when she returned G was in the lounge, sitting on the couch "with her phone" and had said to the appellant "Pop can you run me around to mum's?", which he did.
3. The second asserted contradiction is a reference to the following evidence given by the appellant's wife:

"All right. And did you have any discussions about Centrelink with G? .... Actually, no, until I got messages on my phone from her.

Okay. And what was the nature of those messages? ... Well, quite nasty.

And what were they about though? ...Um, she reckoned that I'd told Centrelink she could live at home. She could - she wanted me to say she had no-where to live, but that wasn't the truth. She could live at home. She could live with me. But I hadn't even talked to Centrelink at that stage."

1. In Pell v The Queen [2020] HCA 12, 268 CLR [11], citing Chidiac v The Queen [1991] HCA 4; (1991) 171 CLR 432 at 444 per Mason CJ, citing Chamberlain v The Queen [No 2] [1984] HCA 7; (1984) 153 CLR 521 at 618-619 per Deane J; see also M v The Queen [1994] HCA 63; (1994) 181 CLR 487 at 494 per Mason CJ, Deane, Dawson and Toohey JJ, used the interrogative of "a significant possibility that an innocent person has been convicted because the evidence did not establish guilt to the requisite standard of proof". There is in my view absolutely no possibility in the present case that an innocent person has been convicted.
2. The "contradictions" advanced on behalf of the appellant, whether they be characterised as inconsistencies or discrepancies or inadequacies, are jejune and should not be dignified by any close analysis. The evidence of the appellant's guilt was inexpugnably strong. The asserted contradictions can be judged by the relative marginality of the evidence cited in support of them that I have set out in substance above.
3. The jury were entitled to accept the evidence of all six complainants. There was no serious suggestion of collusion and no realistic suggestion of false allegations and concoction other than the appellant's insistence that the complainants were all lying.
4. The jury were entitled to treat the minor inconsistencies and apparent anomalies pointed out by trial counsel[1] in her closing address (and pursued on appeal), as explicable in a variety of different ways, including mistaken memories about non-determinative detail, or the appellant's wife seeking to aid him. Such matters did not compel a reasonable doubt.
5. This Court must proceed on the basis that issues of assessment of credibility and reliability of oral testimony are matters primarily for the jury and has no power to intervene unless "by reason of other evidence", that assessment can be seen to be unreasonable or unsupportable. In my view, it cannot.
6. Above all else, the tendency evidence, which was cross-admissible in all six cases against the appellant was denouncing. The jury was entitled to use that evidence, in the limited way that was explained to them, and along with the complainants' testimony, to conclude beyond any doubt that the appellant had a propensity over many years to use children as the objects of his sexual gratification.
7. Accepting that propensity evidence cannot be the sole determinant of, much less a "shortcut" to, guilt, to say, as was submitted to this Court by the appellant's counsel, that it "accepted that in this instance the tendency notice would have played a significant part in the jury's analysis of the evidence" is something of an understatement in this case.
8. As to questions of the memories of the complainants and issues of opportunity for some of the crimes to have been committed and "the business of the house", I respectfully endorse what was said by Martin AJ in AWK v Tasmania [2024] TASCCA 5 at [318]- [319]:

"318 This appeal, and many of the submissions advanced by the appellant, reflect and seek to perpetuate outdated concepts and myths surrounding the conduct to be 'expected' of child complainants in sexual assault cases_._ Similarly, they seek to perpetuate such concepts and myths about the evidence of child complainants, often given many years after the events. The submissions also overlook the risk-taking behaviour of sexual predators commonly the subject of evidence in the criminal courts.

1. I agree with the observations of Wood J concerning submissions amounting to speculation as to memories and behaviours 'expected' of child complainants. As her Honour has noted, there exists extensive research in this area. In addition to research, there is a wealth of experience in the criminal courts demonstrating the fallacy underlying the outdated concepts to which I have referred."
2. The observations of Wood J, which I also respectfully endorse, and which are to an extent apposite here, were also made in AWK, at [278]-[280] and were as follows:

"278 At times, there was an invitation to the jury to speculate about matters on which there is a body of knowledge and research. I have already mentioned the matter of why the complainant did not make a contemporaneous disclosure. Additionally, the contentions concerned notions about what the complainant would remember if she had been subject to the incident of abuse alleged. There were contentions propounded on behalf of the appellant that if her account was true, then realistically the jury could expect that the complainant would not forget or make a mistake about certain details, often matters of context peripheral to the sexual conduct. These same contentions were then pressed before this Court on appeal. This approach can be seen in a number of the submissions made, such as in relation to occasion one, two and seven and how the complainant did not have a memory of putting on her shoes before going to the shed where the alleged abuse occurred, her failure to mention the lock on the shed, and her lack of evidence about sensory perceptions such as pain and smell.

1. The nature and operation of human memory is an area of extensive scientific psychological research: Goodman-Delahunty, J, Nolan, M A, & Van Gijn-Grosvenor, E L (2017). Empirical guidance on the effects of child sexual abuse on memory and complainants' evidence. Royal Commission into Institutional Responses to Child Sexual Abuse. Furthermore, scientific findings do not align, at least in some key respects, with 'common sense' notions held within the community about memory. Memory is not like a video tape which accurately records all details of a particular event in sequence and which can then be played back years later.
2. While defence counsel may be given considerable latitude by a trial judge in a closing address, on appeal, counsel can expect the Court to be cautious about such contentions and to resist invitations to speculate and to fill gaps in the evidence with counsel's version of common sense or intuition. Counsel should expect the Court to be conscious that memory is a field of expertise and specialised knowledge, to be alert to the risk or reality of counsel propounding erroneous beliefs about memory, and to be aware that there was no expert opinion before the jury to support defence contentions made about memory. This observation, of course, applies with equal force to the State and contentions it may make if it is suggested that matters of specialist knowledge are matters upon which the jury or the Court on appeal may speculate." (My emphasis.)
3. As will be obvious the proposed appeal against conviction has no merit and as already noted, I would refuse leave to appeal.

1. The appellant's submissions in support of his sole ground of appeal that his sentence was manifestly excessive are set out in his counsel's written submissions as follows:

"335 It cannot be ignored that the court were sentencing for very serious conduct, relating to multiple complainants over many years.

1. However, it is submitted that even giving these matters full weight the sentence was very significant.
2. Ultimate determination of this ground of appeal will be impacted upon by the determination of ground 1 [that he was wrongly convicted].
3. It is generally submitted that [KBR's] age and health were not given sufficient weight."
4. The question for this Court is not whether sufficient weight was given to his age and health. It is whether the sentence was manifestly excessive. The legal principles with respect to such a ground are trite.
5. The task for this Court in such cases is well established. The appellant must establish that the sentence imposed was "unreasonable or plainly unjust": DPP v Pearce (2016) 28 Tas R 1 per Pearce J at [8], citing House v King (1936) 55 CLR 499 at 505.
6. In passing sentence, the learned trial judge made the following comments relevant to considerations of the appellant's age and health:

"The defendant is now 70 years of age. He has no prior convictions, which in my view impact upon the sentencing exercise. There are dated matters of assault police and common assault, but they are of such an age that they carry no weight. The defendant has a strong work history being the primary provider for his family until he became a full time carer for wife. I note however that in a matter of this nature, prior good character provides little by way of mitigation. The defendant is in poor health. He suffers from a number of medical conditions including Parkinson's disease, diabetes, COPD, hypertension, osteoarthritis and depression. Prior to his remand in custody, he was taking a number of medications, including some for pain relief which are no longer available to him because of prison policy. He is finding his adjustment to an alternate medical regime difficult. I accept the defendant's time in custody will be more difficult because of his age and poor health. He is likely to be vulnerable within the prison environment. I also accept the defendant's incarceration will be difficult for his wife. She suffers from a serious medical condition and the defendant has been her full-time carer for a number of years. His absence will undoubtedly be keenly felt by her. The defendant's wife requires the assistance of a full-time carer and alternate arrangements will need to be made, which may not be easy.

The defendant's advanced age and associated poor health are, of course, relevant to the assessment of sentence, as is, the impact of his incarceration upon his wife. In my view however, none of these factors carry any significant mitigatory value, particularly when balanced against the objective seriousness of the defendant's crimes and his high level of moral culpability for the offending. It may well be that given the defendant's age, he faces the prospect of spending a considerable period of his remaining life in prison. I bear that in mind in formulating the appropriate sentence, but, that factor cannot, in these circumstances, justify the imposition of an unduly lenient sentence."

1. That approach to those considerations is entirely normative.
2. And, the question for this Court is not whether the sentence was "very significant", as it was observed to be by the appellant's counsel. It was a heavy sentence passed for heinous crimes. The question for this Court is whether, having regard to the legal principles just set out, the sentence was unreasonable or plainly unjust. In my view it was not. A heavy sentence was warranted.
3. Sentences for crimes of this nature have increased very significantly in the last two decades.
4. In R v Kilic [2016] HCA 48, 259 CLR 256 the High Court said at [21]:

"...Consideration of 'current sentencing practices' will include, where appropriate, the proper use of information about sentencing patterns for an offence. The requirement of currency recognises that sentencing practices for a particular offence or type of offence may change over time reflecting changes in community attitudes to some forms of offending. For example, current sentencing practices with respect to sexual offences may be seen to depart from past practices by reason, inter alia, of changes in understanding of the long-term harm done to the victim. So, too, may current sentencing practices for offences involving domestic violence depart from past sentencing practices for this category of offence because of changes in societal attitudes to domestic relations." (Emphasis added.)

1. There can be no tariff for the particular combination of crimes for which the appellant was convicted, and comparative sentencing data is of limited use given the unique combination of particular circumstances involved. Nonetheless, some examples serve to put the sentence in this case into a regime.
2. In LMA, 3 August 2023, where the defendant pleaded guilty to two counts of persistent abuse of a child, I passed a sentence of 16 years. The defendant was an ex-partner of the mother of two children and sexually abused the children between ages 8-12 and 5-10. The defendant, who was a friend of the victims' family, committed multiple crimes of indecent assault and rape in what was an egregious breach of trust.
3. A sentence of 16 years was also passed by Brett J in G, 17 April 2023, in a case where a jury had found the defendant guilty of two counts of persistent sexual abuse of a young person. The victims were the defendant's biological daughters who he groomed and indecently assaulted and raped between the ages of 12-15 and 14-16.
4. A sentence of 25 years was passed by Pearce J in NLR, 11 May 2023, after the defendant had been found guilty by a jury of four counts of persistent sexual abuse of a child and two counts of indecent assault. That was a grave case of prolonged abuse by the defendant of his three biological children and two children in his household. The abuse included multiple vaginal rapes of girls of very tender age.
5. The learned trial judge in passing sentence also made the following comments, which cannot be gainsaid in my view:

"The fact is the defendant perpetrated these crimes over a 23 year period. He manipulated the complainants into silence by using the threat of the destruction of the family and adverse consequence for their loved grandmother. By so doing the defendant was not only able to continue his sexual abuse but he gained the benefit of living freely within the community during that time. He has avoided responsibility for his conduct until now. On the other hand, each of the complainants has had to live with the consequences of his criminal behaviour from the time the abuse was perpetrated upon them. It would be inappropriate and unjust for considerable leniency to now flow because of the defendant's age and poor health.

The gravity of the defendant sexually abusing his biological children, grandchildren and step-grandchildren hardly needs to be stated. It was deviant and incestuous behaviour. Over a 23 year period the defendant sexually abused six young people, all of whom were members of his extended family. The breach of trust involved was enormous. The defendant bore a responsibility to nurture, care and protect his children and grandchildren, but instead he took advantage of his position of trust within the family in order to abuse each of them. In so doing, the defendant destroyed important family bonds, including those of a father and child, and has left the extended family unit irreparably damaged. The abuse occurred at a stage in each of the complainants' lives, which was of importance for their psychological, sexual and emotional development. Much of the abuse was committed within the family homes where the children were entitled to feel safe and loved, but instead their homes were, I suspect, often permeated by anxiety, distress and fear about what might happen to them. This behaviour was protracted and it was purposeful. It was not isolated nor spontaneous.

The defendant's behaviours encompassed all manner of sexual abuse, including penetrative and non-penetrative acts. The acts by reason of their nature and incestuous character were degrading and humiliating. The defendant groomed his victims to lower their inhibitions and used threats and coercion to maintain their silence. It is aggravating, in my view, that the defendant used the threat that the family unit, and/or their grandmother would be adversely impacted if the complainants disclosed the abuse. Such manipulation must have exacerbated the feelings of powerlessness each complainant experienced. The decision to expose the abuse must have been a terribly difficult one. Young children were burdened with the choice of remaining silent and maintaining the family, or protecting themselves and risking decimation of the family unit. There is no question that the behaviour of the defendant involves exceptionally serious moral and criminal wrongdoing.

He has caused lasting and profound psychological and emotional harm to his six victims. The sexual abuse he subjected them to has been traumatic, it has marred their childhood and significantly impacted their adult lives. I have received victim impact statements from five of the six complainants. Those statements eloquently reveal the extent and nature of the harm caused by the abuse and the pain and hurt caused by the consequential destruction of family relationships. The statements courageously describe the pervasive and adverse psychological impact that is understood and accepted to flow from crimes of this nature. In respect to the complainant from whom I did not receive an impact statement, I nevertheless sentence on the basis that it is presumed that sexual crimes against children cause harm. In any event, the impact these crimes have had upon each complainants was also apparent from their evidence. The enormity of the conflicting emotions they all experienced and the impact that has had upon them was plain. I am satisfied the defendant's conduct has had a profound and deleterious effect upon each one of the complainants, which is likely to be lifelong and the true effect of which is quite frankly, immeasurable. It can only be hoped that the finalisation of sentence may offer the opportunity for some healings to begin.

I have regard to the aggravating circumstances I am required to take into account by virtue of the Sentencing Act 1997, s 11A, in particular sub-sections (1)(a),(c),(d) and (da). I take into account generally the factors enunciated as relevant to sentencing child sexual offences in DPP v Harington [2017] TASCCA 4.

The defendant is not entitled to any discount on his sentence for pleading guilty. Each of the complainants were required to endure the ordeal of giving evidence and whilst the defendant is certainly not to be punished for exercising his right to trial, I have no doubt each complainant found the court process a difficult one. The defendant has demonstrated no remorse nor insight into the gravely serious nature of his conduct.

The sentencing goals, which are prominent in sentencing a matter of this nature, are community protection, punishment, denunciation and vindication of the victims and recognition of the individual harm they have suffered. The sentence must make clear to the defendant and others that those who commit sexual abuse against children, can expect to receive harsh punishment. This Court has an obligation to endeavour to protect children and deter such abuse by the imposition of strong sentences that reflect society's condemnation of such behaviour."

1. It is well understood, as was observed by the learned trial judge, that in sentencing for child sexual offences the principles of general deterrence, denunciation and vindication of victims are to the fore and I have no hesitation in concluding that the sentence imposed on the appellant was not manifestly excessive. The appellant's assertion of his age and health being underweighted by her Honour does not lead me to a different conclusion. I regard the sentence as strong, but well within her Honour's wide sentencing discretion and conformable with sentences passed by other judges of this Court in grave cases of the sexual abuse of children.
2. I would dismiss the appeal against sentence.

1. On 3 July 2025, I joined in ordering that the appellant be refused leave to appeal against conviction and that his appeal against sentence be dismissed. I have read the reasons for judgment of Estcourt J and agree with them. They reflect my own reasons for joining in the orders of the Court.

[1] The appellant's counsel on this appeal was not counsel on the trial.