The proposed conviction appeal - timing issues

1. As indicated, the indictment alleged the commission of seven offences, each one of which was alleged to have occurred between 1 December 1992 and 30 July 1995.
2. The Crown opening grouped the alleged offences into four 'incidents'.
3. Incident 1 was described as having occurred 'after the water balloon fight'. The Crown opening stated that three acts of sexual penetration had occurred on an occasion 'in the December school holidays in 1992 or 1993'. Charges 1, 2 and 3 on the indictment were alleged to have been committed in this incident.
4. Incident 2 was described as having occurred '[w]hen the complainant was walking back from the playground'. The Crown opening stated that this incident occurred '[a] few weeks after the first incident'. Charges 4 and 5 were alleged to have been committed in this incident.
5. Incident 3 was described as having occurred '[i]n the dining room area'. The Crown opening stated that this incident occurred '[o]n an occasion in approximately 1994'. Charge 6 was alleged to have been committed in this incident.
6. Incident 4 was described as having occurred '[i]n the lounge room'. The Crown opening stated that this incident occurred on 'an occasion in approximately December 1994'. Charge 7 was alleged to have been committed in this incident.

1. It is unnecessary at this stage to set out the complainant's evidence of the acts which constituted the alleged offences. For present purposes, it is sufficient to concentrate upon his evidence on the issues of timing.
2. In his evidence-in-chief, the complainant said that all four incidents had occurred when he was between the ages of six and nine. The complainant turned six on 23 October 1992. He turned nine on 23 October 1995.
3. The complainant's evidence was that the first incident occurred when he was six years old.
4. The complainant said that the last incident occurred in the year that his family moved out of the address at which they were then living next door to the applicant.
5. When asked in which season the first incident had occurred, the complainant said that it 'would have been summer'. When asked whether he was then attending primary school, the complainant said he 'would've been in school by then', but he said he did not know what grade he was in.
6. The complainant was asked how old he was in the second incident, and he said that he did not know. He said that the second incident happened after the first incident.
7. In relation to the third incident, the complainant was asked in evidence-in-chief whether he knew how old he was at that time, and he responded saying that it 'had to be before I was 10 because we weren't in the neighbourhood by then'. He said he did not know what his exact age was.
8. In the complainant's evidence-in-chief, he said that in describing the third and fourth incidents he had put the sequence in the 'opposite order'.
9. The complainant's cross-examination focused on the issue of timing. It began with counsel asking the complainant whether he had started primary school in 1992. Initially the complainant said that he did not know and then said that that sounded 'about right', before adding that he would not know without 'checking records'.
10. The complainant was taken to evidence he had given at the committal where he had said in response to the same question that it '[m]ust have been about 92'.
11. It was then put to the complainant that if he turned six in October 1992, he would have started grade one in 1993. The complainant agreed that that 'adds up'.
12. The complainant then agreed that he had turned seven on 23 October 1993. He was taken to the police statement that he had made where he had said in relation to when incident 1 occurred: 'It was summer of 1993, December school holidays, and I was seven years of age'. The complainant agreed that that was 'how the statement reads'.
13. The complainant was asked about evidence he had given at the committal where he had agreed with the proposition that he had told the police the first incident was in December 1993. He was then taken to another passage from his evidence at the committal where he had been asked what grade of school he was in at the time of incident 1 and he had answered 'one or two'. The complainant agreed that that was the answer he had given.
14. The cross-examination then moved to incident 2. The complainant was referred to the fact that his police statement had said that incident 2 happened a few weeks after the first incident. In response, the complainant said: 'But, you know, a few weeks, a few months. I don't know.' When his Honour sought to clarify the answer, the complainant said: 'I can't confidently define the periods of time.' The complainant was taken to his police statement and his evidence at the committal where he had placed the second incident as a few weeks after the first. The complainant agreed that that was what he had said.
15. It is useful to interpose at this point that having the complainant place the first incident in December 1993, and the second a few weeks after, was potentially significant for the defence case. Later in the trial, evidence would be led to establish that the applicant was not living in the house next door to the complainant between 6 May 1993 and 20 March 1994.
16. In relation to the third incident, the complainant agreed that in his police statement he had said that this incident had occurred a few months later, around the Easter school holidays in 1994. The complainant agreed that that was what he had told the police. When asked to confirm that the third incident had occurred around the Easter holidays in 1994, the complainant said: 'I can't confidently say as to the time or the - when it happened'. When it was put to him that this had not been the case when he spoke to the police and made his statement, the complainant disagreed and said that he had 'tacked a date on it'. He was taken to evidence that he had given at the committal where his police statement had been put to him, and in response to a question as to whether he remembered when the third incident took place he had answered 'no'.
17. The complainant agreed that when he gave his account of the various incidents in evidence-in-chief he had swapped incidents 3 and 4. The complainant said: 'I reported four incidents, and it appears that I have mistaken the third incident and the fourth incident'.
18. When asked further about the date of the third incident, the applicant said: 'The dates and times don't mean anything to me. Referring to the dates and times is just going to confuse me'.
19. In relation to the fourth incident, the complainant agreed that his evidence-in-chief was that this had happened when he was nine. When it was put to him that he had turned nine on 23 October 1995, after his family had left the address next door to the applicant, the complainant responded: 'So I guess I was eight'. The complainant was taken to his police statement where he had said that the fourth incident occurred in late 1994 after he had turned eight years of age.
20. It was put to the complainant that the reason he was so vague with dates was because the incidents had never occurred. The complainant said that that was not correct.

1. When the informant gave evidence, it was put to him that inquiries he had made with the relevant government department had indicated that the applicant was not living at the property next door to the complainant between 6 May 1993 and 20 March 1994, and the informant responded: '[T]he documents suggest that timeframe, yes'.
2. The applicant's mother gave evidence. She said that she and the applicant had lived in the house, which was next door to what was at the relevant time the complainant's family's house, since 1979, and that she still lived there with the applicant. She said that there was a time when the applicant was not living in that house and had lived with the applicant's sister. The applicant's mother gave evidence that between 1992 and 1995, the family went on holidays every year to the Murray River. Her evidence was that they always went at Christmas. When asked how long they went for she responded: 'Usually school holidays ... [u]sually four weeks, five weeks'. The applicant's mother gave evidence that the applicant always went on these holidays. She was then asked about Easter holidays and whether, between 1992 and 1995, they took holidays at Easter, and she said '[y]es, I think so'. When asked whether they stayed for some of the holidays or the whole holiday, she said: 'All of Easter'.
3. The applicant's sister gave evidence that the applicant lived with her at a different address for approximately 10 months from May 1993. She agreed that she and her brother visited her mother during that 10 month period at least once a week. She said the visits were short - half an hour or maybe an hour - and that her brother was never left alone. She was asked about holidays in the period from 1992 to 1995. She said they always went camping on the Murray River at Christmas. When asked for how long, she replied: 'Anywhere from two weeks to a month. Sometimes two months'. She said the applicant always went. She said they also went on holidays at Easter to the same place and that she could not recall an Easter between 1992 and 1995 when the applicant had not attended.

1. In the final address on behalf of the Crown, counsel told the jury that 'one of the major planks of the defence' was the issue of dates. Counsel for the Crown submitted that the complainant could not identify the date or the particular year 'with any precision', but that the events happened within the time period alleged, being December 1992 to July 1995. Counsel submitted that the dates were not an element of the offences and that it was unsurprising that an adult talking about events when he was six to nine years old was not able to give precise dates.
2. Counsel for the applicant submitted to the jury that the dates were 'highly important' and that if the dates the complainant gave to the police were correct, the applicant had had 'no opportunity to commit at least the first three of these four alleged acts'. Reference was made to the evidence that the applicant was not living at the house next door to the complainant between 6 May 1993 and 20 March 1994 and was never left alone when he visited the house during this period. It was said that there was unchallenged evidence that every year in the summer holidays during the relevant period, the entire family went to the Murray River 'for the entirety of the holidays', and that there was similar evidence in relation to Easter. It was submitted that the complainant had 'changed the story' in relation to the dates, and reference was made, in particular, to differences between his evidence at trial and what he had said in his police statement.

1. The judge in his charge referred to the evidence given by the complainant about issues of timing in the context of the jury's approach to dealing with inconsistencies in a complainant's account.[5] He reminded the jury of the evidence that the applicant was not living at the house next door to the complainant between 6 May 1993 and 20 March 1994 and the evidence which had been given about the holidays. He gave what senior counsel for the applicant on the hearing before us conceded was a 'strong' forensic disadvantage direction, based on the delay of some 25 years between the end of the alleged offending and the complainant's contact with police.[6] He summarised what counsel had said about the issues of timing in their final addresses.

1. In his Written Case the applicant submitted that the jury ought not to have been satisfied beyond reasonable doubt of his guilt because of the evidence of absence of opportunity. It was submitted that the complainant's evidence-in-chief was that the first incident occurred in December of either 1992 or 1993 and that he had conceded under cross‑examination that he had told the police the incident had occurred in December 1993. He had said at the trial that he was six years old at the time, but conceded telling the police that he had been seven years old and in grade 1 or 2. He had been in grade 1 in 1993.
2. It was submitted that the complainant's evidence in relation to the second incident was that it was 'a few weeks' after the first, and that his evidence in relation to incident 3 was that it was at Easter 1994, 'a few months' after incident 2. It was submitted that the complainant had given inconsistent evidence in respect of the dates of incidents 3 and 4.
3. The applicant submitted that there always was, and had remained, a reasonable possibility that the applicant was not present in the house next door to the complainant during the period when the offences were alleged to have occurred. The applicant accepted that the dates 'per se' were not elements of the offences and did not need to be proved beyond reasonable doubt, but submitted that the jury were required to be satisfied beyond reasonable doubt that the accused had been present when the offences were allegedly committed. It was submitted that the evidence of absence was 'very telling'. The applicant submitted that it was uncontroversial at trial that the applicant was not residing in the house next door to the complainant's family's house between 6 May 1993 and 20 March 1994. Further, the applicant submitted that for the jury to be satisfied that the offending had occurred earlier in the charge period, the jury had to 'discount' the sworn evidence of the applicant's mother and sister that the family went on holiday to the Murray River every year for summer and Easter.
4. The respondent in its Written Case submitted that the complainant had given 'strong, compelling' evidence of the sexual offences. Although he had been forcefully challenged, he had not wavered in his account of the alleged sexual penetrations. It submitted that the defence evidence was not 'alibi' evidence, but rather evidence relevant to the credibility and reliability of the complainant.
5. The respondent submitted that in his evidence-in-chief the complainant said that he could not confidently define the periods of time. It was submitted that this was to be expected given that he was required to give evidence of traumatic events which occurred around 30 years ago when he was between six and nine years old.
6. Specific reference was made to the evidence of the applicant's mother and sister, which it was submitted was not to the effect that the applicant was away from the house for the entirety of the holiday periods.
7. It was conceded that the complainant had been unable to recall exact dates and times, but it was submitted that in other respects the complainant's evidence was particularly cogent. Specific reference was made to evidence given by the complainant in relation to the layout of the applicant's house which was said to be significant in light of the defence assertion that he had never been inside the property.

1. It is necessary to briefly review the evidence which the complainant gave concerning the interior of the applicant's house.
2. In his record of interview, the applicant had been asked about his knowledge of the complainant and another boy. At Q171-173, the following interchange is recorded:

Q They ever come over to your place?

A Nuh, nuh, nuh.

Q Any of the boys come over to your place?

A Nuh.

Q They'd never been inside?

A Hell no.

1. In cross-examination, counsel for the applicant put to the complainant that he had never been inside the applicant's house. The complainant responded: 'Yes, I have. On several occasions.'
2. In the course of describing the incidents, the complainant gave a number of descriptions of aspects of the interior of the applicant's house. He described the bedspread in the applicant's bedroom. He described aspects of the house's layout and its furniture. He had drawn a diagram of the house for the police. That diagram, drawn by the complainant, and a housing commission diagram of the applicant's house were both tendered.
3. In final submissions, counsel for the Crown had relied upon those circumstances and, in particular, the diagram which the applicant had drawn. Counsel for the applicant in his final address suggested that there were differences between the complainant's diagram and the housing commission diagram and that the photos before the jury revealed that 'more than one room' was visible through the windows, from the street or from the backyard of the house in which the complainant's family were then residing.

Proposed ground of appeal on conviction - oral submissions

1. In oral submissions, senior counsel for the applicant 'relied heavily' on the High Court decision in Pell v The Queen ('Pell').[7] He acknowledged that there were some significant factual differences 'in the nature of the materials' in Pell, but said the 'structure' of Pell was one that he would seek to follow in demonstrating that the jury must have entertained a reasonable doubt on the evidence.
2. Senior counsel addressed the evidence of the complainant's demonstrated knowledge of the inside of the applicant's house, submitting that it was not 'independent' support for his evidence and was not 'conclusive'. Senior counsel was asked why the applicant's mother and sister had not been asked about the accuracy of what the complainant had said, and senior counsel responded that the complainant had generally got 'quite a lot right' about the interior of the house, which was conceded to be relevant. He said there had been only one 'minor error' in the complainant's description of the inside of the applicant's house.
3. Senior counsel submitted that the complainant's evidence in relation to the timing issues was very significant. Particular reliance was placed on what was characterised as the changes in his account of the timing of the alleged offending when comparing what he had told the police and said at the committal with what he had said at trial.
4. It was submitted that the changing of the dates in a matter where there had been a very long delay meant that the forensic disadvantage concerned 'substantive' matters and not just 'process'.
5. Senior counsel submitted that the Crown case depended solely on the complainant's account. Although there was complaint evidence, senior counsel submitted that this evidence was of limited assistance to the complainant, given that the complaints were 'many years later'.
6. Senior counsel for the applicant submitted that the following matters meant that the jury 'was bound' to have had a reasonable doubt, notwithstanding what was conceded to be a 'coherent account' by the complainant:

(1) The 'indignant' denials of the offending by the applicant in his record of interview.

(2) The applicant had in relation to the first incident assisted the authorities by giving the names of people who were present at the water balloon incident - or at least at a water balloon incident, in his record of interview. Although police attempts to obtain evidence from them were unsuccessful, it was submitted that that was an indication that the applicant was unconcerned at what might be revealed.

(3) Character evidence was given by the applicant's mother and sister. They gave evidence that he had never demonstrated any attraction to males, young or old, and that he was relevantly of good character.

(4) The applicant suffered from a mental impairment. He ought to have been assessed as not having the ability to sustain the kind of manipulation alleged by the complainant or to conceal from his mother and sister a sexual interest in young boys.

(5) Finally, senior counsel relied upon the evidence concerning the timing issues which had been addressed in detail in the applicant's Written Case. Senior counsel said the complainant had given 'quite different' versions of the timing of the alleged offending when he first went to the police, and the charges as initially laid reproduced those dates, with incident 1 being said to have occurred at Christmas 1993, and the sequencing of the other incidents thereafter. It was submitted that the applicant couldn't say how the subsequent changes to the dates by which the prosecution framed its case came about. Senior counsel accepted that in the 'abstract' there are good reasons why a person in this situation might not have a good memory of dates, but here, it was said, the complainant had committed himself to particular dates and then only at trial had altered his account. It was submitted that these events were capable of supporting a 'tactical shift' by the complainant which undermined the credibility and reliability of what he had said.

1. In response to a question from the Bench, senior counsel said that his focus on these matters represented a 'refinement' of the argument made in writing, because the change in the dates on the indictment meant that the lack of opportunity issue had turned 'slightly to dust in our hands'. The amendment of the dates in the indictment had meant a 'straightforward impossibility' argument couldn't be sustained.
2. Senior counsel for the applicant submitted that all the relevant factors had to be assessed 'cumulatively'. He agreed that the matters relied upon here were different to the matters relied upon in Pell in that 'Pell had something that we do not have, to be brutish about it: an alibi'. Senior counsel submitted, however, that there were also 'some external factors' in this case, a reference to the evidence of the applicant's mother and sister concerning the holidays and the evidence of his absence for the 10 month period.
3. In oral submissions on behalf of the respondent, it was submitted that there was 'no mystery' concerning the alterations made in the indictment to the period of the alleged offending, which had been explained at a pre-trial directions hearing on the basis of a recent conference in which the complainant had mentioned that he was possibly as young as six during the offending. It was submitted that it had been clear from the committal that the complainant was uncertain as to time periods, and this uncertainty had also been clear in his evidence. It was submitted that it did not have the impact on his credibility and reliability asserted by the applicant.
4. Senior counsel for the respondent submitted that the matters relied upon by the applicant here were 'standard matters' concerning the credibility and reliability of a complainant which often arise in cases of this kind. These are matters for the jury to assess.
5. Senior counsel for the respondent relied upon the High Court statement in Pell to the effect that the starting point in determining a ground that contends that the verdict of the jury is unreasonable or cannot be supported having regard to the evidence is an assumption that the jury has assessed the complainant as credible and reliable.[8]
6. In relation to the matters other than timing relied upon by the applicant, it was submitted that the applicant's denials in the record of interview have little weight in the current context, and likewise the evidence of good character. It was submitted that the fact that the applicant had named people present in the lead-up to the first incident, and the applicant's mental impairment, were relevant matters to be taken into account by the jury.

Proposed ground of appeal on conviction - consideration

1. We would grant leave to appeal on the proposed ground of appeal on conviction as the matter is arguable, but, for the reasons that follow, in our opinion the appeal should be dismissed.
2. The legal principles applicable on an appeal on conviction on the ground that the conviction is unreasonable or cannot be supported having regard to the evidence[9] are now well-settled, but in the current context it is worth briefly reviewing the authorities.
3. The applicable principles are those laid down by the majority of the High Court in M v The Queen ('M').[10] M was a case concerning sex offences where the Crown case relied upon the uncorroborated evidence of the complainant. The members of the High Court differed on the test to be applied upon an appeal on the ground that the convictions were unsafe or unsatisfactory. The majority (Mason CJ, Deane, Dawson and Toohey JJ, with whom Gaudron J agreed on the applicable test) held that the relevant test was whether it was 'open' to the jury to be satisfied of guilt beyond reasonable doubt.[11] Two of the judges (Brennan and McHugh JJ in dissent) articulated the test as being whether the jury was 'bound' to have had a reasonable doubt.[12]
4. The difference between the two articulations of the applicable test (if there is one) is a subtle one. McHugh J explained what he considered to be the difference.[13] In any event, it is now accepted that the formulation of the majority (with which Gaudron J agreed) is the correct test.[14]
5. All of the judgments in M analysed the position by reference to matters both 'internal' to the complainant's account, and 'external' to that account, which might render the account less reliable and/or credible. The judges came to three different conclusions consequent on that analysis.[15]
6. What may perhaps be described as a 'gloss' on the test established in M appears in dicta of Hayne J in Libke v The Queen.[16] Hayne J observed that whether it was 'open' to the jury to be satisfied of guilt beyond reasonable doubt meant that the jury 'must', as distinct from 'might', have entertained a doubt about the appellant's guilt.[17]
7. The High Court in Pell applied the test established in M.[18]
8. In a passage that was given considerable attention in the hearing before us, the Court said:

The function of the court of criminal appeal in determining a ground that contends that the verdict of the jury is unreasonable or cannot be supported having regard to the evidence, in a case such as the present, proceeds upon the assumption that the evidence of the complainant was assessed by the jury to be credible and reliable. The Court examines the record to see whether, notwithstanding that assessment - either by reason of inconsistencies, discrepancies, or other inadequacy; or in the light of other evidence - the Court is satisfied that the jury, acting rationally, ought nonetheless to have entertained a reasonable doubt as to proof of guilt.[19]

1. In Pell itself, the operative factors which led the Court to conclude that the jury ought to have had a reasonable doubt were matters external to the complainant's account. They were factors founded upon the evidence of what were described as 'the opportunity witnesses'. The complainant's evidence did not contain discrepancies or inadequacies which led to a conclusion that the jury ought to have had a reasonable doubt, rather the conclusion that the jury ought to have had a reasonable doubt arose from the evidence of other witnesses, whose evidence predominantly concerned the lack of opportunity for the accused to have committed the offences as alleged.
2. The reference to 'opportunity' in the ground of appeal in this case reflects the analysis in Pell, although in this case, to a substantial degree, reliance is placed upon inconsistencies and discrepancies within the complainant's own account.
3. The recent decision of this Court in Cookson (a pseudonym) v The King[20] applied both M and Pell in a context not dissimilar to that existing here.
4. The Court in Cookson accepted that it was necessary to proceed on the assumption that the jury had assessed the complainant's evidence as credible and reliable. Having started with that assumption, it was then necessary to ask whether by reason of inconsistencies, discrepancies or other inadequacy in the complainant's evidence, or in the light of other evidence, the jury, acting rationally, must have entertained a reasonable doubt. The Court in that case considered inconsistencies within the complainant's account and also inconsistencies between that account and the evidence of the complainant's mother. The Court then asked whether the matters relied upon detracted 'in any meaningful way from the jury's acceptance of the credibility and reliability of [the complainant] as a witness'.[21]
5. The issue is essentially the same in this appeal. Do the matters relied upon by the applicant detract in any meaningful way from the jury's acceptance of the credibility and reliability of the complainant as a witness? In our opinion, they do not.
6. The applicant relies on the cumulative effect of all of the matters relied upon, but it is, at least in the first instance, necessary to consider them separately.
7. The matters relied upon other than those concerning issues of timing and opportunity can be dealt with briefly.
8. The applicant's denials in the record of interview do not in themselves carry much weight in the context of the issues on this appeal. As McHugh J observed in M: 'Denials are not evidence of the falsity of the allegations nor inconsistent with guilt.'[22]
9. The naming of potential witnesses in his record of interview was a matter open to be seen as both positive and negative from the applicant's point of view. The identification of potential witnesses could have been seen as an indication that the applicant perceived himself to have nothing to fear from what the identified persons might recall. On the other hand, the relevant portions of the record of interview were open to be seen as an acknowledgement by the applicant that the complainant's description of the lead up to the first incident was accurate, and, perhaps more significantly, that the applicant was present at that time.
10. The character evidence was a matter the jury might take into account. In cases involving this type of offending, character evidence may well be assessed as having less impact than in cases involving other kinds of offending.
11. The applicant's mental impairment was put to us as a factor which ought to have led to a conclusion that the applicant would not have had the capacity to manipulate the complainant in the manner alleged or to deceive his mother and sister about his interest in young boys. The applicant's counsel at the trial put to the jury that the applicant was a man of 'very limited intellectual capacity' who was not the sort of person 'capable of orchestrating the protracted series of offences the complainant alleges'. The way the matter was put to us was thus not the quite the same as the way it was put to the jury. In any event, the applicant's limited intellectual capacity was before the jury. In itself, it was not a matter which meant the jury 'must' as opposed to 'might' have a reasonable doubt.
12. All of the factors referred to thus far were, as senior counsel for the respondent submitted, matters for the jury to assess. In our opinion, neither individually, nor in combination, do they lead to a conclusion that it was not open to the jury to find guilt beyond a reasonable doubt.
13. As to the issues of timing and opportunity, this case is not a case like Pell, where there was evidence from 'opportunity witnesses' which the High Court considered was sufficiently cogent to lead to a conclusion that it was not open to the jury to find guilt beyond a reasonable doubt. The evidence here was not of the same character.
14. The evidence of the applicant's mother and sister concerning holidays was vague and was not inconsistent with the complainant's account in the way the evidence of the 'opportunity witnesses' was in Pell. When the applicant's mother was asked how long the family went to the Murray River for in summer, she said '[u]sually four weeks, five weeks'. The applicant's sister's evidence about the Christmas holidays on the Murray River was that they would go there for '[a]nywhere from two weeks to a month. Sometimes two months'. Her evidence about Easter was just as vague. There is nothing surprising in that regard. They were describing holidays 30 years earlier. It is unsurprising that they were unable to precisely recall time periods. Their evidence did not require the jury to have a reasonable doubt.
15. The significance of the evidence that the applicant was not living at the house next door to the complainant for 10 months from May 1993 depended upon the complainant's statement to police, from which he had not resiled at the committal, that the first incident had occurred in December 1993.
16. Whereas the complainant had told the police that the first incident occurred in December 1993, in his evidence in the trial he said it was when he was six (thus, it would have been December 1992, him having turned six on 23 October 1992), and he expressed uncertainty about the year and about issues of timing more generally.
17. The proposition that the first incident had occurred in December 1993 potentially had a consequential effect on the second and third incidents, again, on the basis of the complainant's police statement in relation to sequence and timing.
18. The inconsistencies between the complainant's police statement and his evidence in the trial were matters that the jury were perfectly entitled to take into account in assessing the complainant's credibility and reliability. These matters were fully exposed before the jury in the evidence, in the addresses, and in the judge's charge. It was the jury's function to assess the significance of those matters.
19. The complainant's expressed uncertainty as to the timing of the incidents of offending at the trial was open to be seen as more credible than the dates he had, to use his words, 'tacked on' to the incidents in his police statement. He was an adult describing events that he said had taken place 30 years before when he was between six and eight years old.
20. Whether viewed separately, or in combination with the other factors relied upon, in our opinion, the evidence of what the complainant had said as to timing in his police statement, the inconsistency between that timing and his evidence at trial, and the evidence that the applicant was not residing in the house next door for 10 months from May 1993, do not result in a conclusion that it was not open to the jury to find the charges proven beyond a reasonable doubt. They are not matters of sufficient cogency to meaningfully detract from the jury's assessment of the complainant's evidence as credible and reliable. To address the issue in the terms used by Hayne J, these issues 'might' have caused the jury to entertain a reasonable doubt, but they did not, in our opinion, mean they 'must' have entertained a reasonable doubt.
21. For these reasons, in our opinion, the appeal on conviction should be dismissed.

1. In addressing this appeal we will refer to the applicant on the conviction appeal as the respondent.
2. As we have said, the respondent was convicted on 24 April 2024. On 6 December 2024, he was sentenced as follows:

• Sexual penetration of a child under 16 (contrary to s 45(1) of the Crimes Act 1958 as amended by the Crimes (Amendment) Act 2000)

• Sexual penetration of a child under 16 (contrary to s 45(1) of the Crimes Act 1958 as amended by the Crimes (Amendment) Act 2000)

• Sexual penetration of a child under 16 (contrary to s 45(1) of the Crimes Act 1958 as amended by the Crimes (Amendment) Act 2000)

• Sexual penetration of a child under 16 (contrary to s 45(1) of the Crimes Act 1958 as amended by the Crimes (Amendment) Act 2000)

• Sexual penetration of a child under 16 (contrary to s 45(1) of the Crimes Act 1958 as amended by the Crimes (Amendment) Act 2000)

• Sexual penetration of a child under 16 (contrary to s 45(1) of the Crimes Act 1958 as amended by the Crimes (Amendment) Act 2000)

• Sexual penetration of a child under 16 (contrary to s 45(1) of the Crimes Act 1958 as amended by the Crimes (Amendment) Act 2000)

• Pre-sentence Detention declaration pursuant to s 18(1) of the Sentencing Act 1991:

• Section 6AAA Statement:

1. Pursuant to s 6F of the Sentencing Act 1991, sentenced as a serious sexual offender in respect of charges 3 to 7.
2. Pursuant to s 34 of the Sex Offenders Registration Act 2004, the length of the reporting period is life.

1. The judge published reasons for the sentence imposed ('the sentencing reasons').[23]
2. The sentencing reasons in respect of the offending, its gravity and impact, and the respondent's personal circumstances (including his prospects of rehabilitation and moral culpability) are clear and comprehensive. The sentencing judge addressed all of the relevant matters. It is not suggested by the DPP that the sentencing judge made some identifiable error. Rather, the DPP, in substance, contends that the outcome is a manifestly inadequate sentence. The focus of complaint is on the orders made concerning cumulation and the consequent total effective sentence and non-parole period.
3. Little has been said to this point about the offending conduct. The sentencing judge summarised it well as follows:

Incident one (charges 1, 2 and 3)

1. [The complainant] was playing in the street with other children having water fights. You joined them on the street and provided a tub of waterbombs and played with the children. There came a stage when you were left alone with [the complainant] as the other children had gone home. [The complainant] asked you if you had any more waterbombs. You replied 'yeah' and invited him into your house. He followed you into your house. This was his first time inside your house. You took him into your bedroom. You made him bend over the bed, face down, and his pants were pulled down. You pulled the cheeks of his buttocks open and began licking and poking your tongue inside his anus.
2. You then placed a porn magazine in front of him and inserted your penis inside his anus and began penetrating him. He told you it was hurting, he was crying, struggling and trying to pull away. You told him to keep quiet and not make too much noise if he wanted to see his parents again. You ejaculated onto him, licked the semen off him, and then penetrated his anus again with your penis.
3. You then took him into the toilet and wiped his buttocks with toilet paper. [The complainant] went home. He did not tell his parents because he was scared.

1. On another occasion, [the complainant] was walking back home having been to the park. As he walked past your house, you called him over and ushered him inside your house. You took him into your bedroom. Once again, he bent over the bed with his pants pulled down. You placed a porn magazine in front of him and dictated to him when he should turn the pages. You began licking and penetrating his anus with your tongue. You then penetrated his anus with your penis. Having ejaculated you licked the semen. James gave evidence, he was crying and begging you to stop and to let him go home.
2. You told him that if he told anybody about your offending: he would be taken away from his parents; he would never see his parents again; you would tell everyone; and he would be laughed at. Once he got home, [the complainant] told his father he was at the park and made no complaint about your offending as he was scared.

1. On another occasion you coerced [the complainant] to climb over the fence from his backyard and enter into your house. You told him if he did not comply you would tell people about your offending, and he would be taken away from his parents. Once in the house, you placed a chair sideways at the dining table and told him to kneel on the chair. You bent him over the dining table and penetrated his anus with your penis until you ejaculated.

1. On another occasion, you again coerced him into climbing over the fence and into your house by saying you would tell people about your offending, and he would be taken away from his parents. On this occasion, you put a porn video on the TV in the lounge room. You then bent him over the coffee table and penetrated his anus with your penis until you ejaculated.[24]

1. As the sentencing judge observed:
   1. It can be said with absolutely no doubt, this was very grave offending. Each charge attracts a maximum penalty of 25 years' imprisonment. You took advantage of a particularly young and vulnerable child and abused him on many separate occasions over an extended period of time. You, as an adult, had no regard to his innocence or distressed state. You engendered fear in him by telling him he would be taken away from his parents and that no one would believe him. During the course of the offending, you introduced him to pornography. The impact of your offending on your victim has been significant, and continues to take a toll on the quality of his life. Sexual offending of this nature has been rightly described by the Courts as vile, depraved, evil and abhorrent.
2. The victim impact statement of the complainant reveals that the impact of the offending upon him has been most profound.[25]
3. There were a number of significant mitigating considerations which the judge addressed.
4. First, probably as a result of a medical incident when he was a baby, the respondent has a mild intellectual disability. He experienced significant difficulty in his education. He has never had significant gainful employment. He finds it difficult to undertake even simple intellectual tasks.[26]
5. Second, the offending occurred when the respondent was young, in his very late teens or early 20s.[27]
6. Third, the respondent has no relevant prior or subsequent history of offending.[28]
7. Fourth, there was considerable delay between the commission of the offences and the complainant's report to the police. The complainant's formal police complaint was made on 15 July 2020. The respondent was arrested and interviewed on 31 March 2021 and was charged on 6 August 2021. For reasons that were not the fault of the respondent, his trial did not commence until 16 April 2024. A plea was heard on 2 September 2024 and 23 September 2024 and the sentence was handed down on 6 December 2024. As the judge observed, the delay between the offending and the charging is relevant to the respondent's prospects of rehabilitation, and the delay in the finalisation of proceedings is a matter which would have caused the respondent anxiety which can be viewed as itself a form of punishment.[29]
8. In relation to the mitigating considerations, the judge said:
   1. I have taken into account the guidance from the High Court in Muldrock. You have been assessed with a mild intellectual disability. Subtests have revealed certain areas of your cognition to be more significantly affected than others. Your cognitive limitations have been life long and were operative at the time of your offending.
   2. I accept that your moral culpability for your offending must be reduced in line with Muldrock and later cases that I was referred to.
   3. I also accept that you were young when the offending occurred and your youth alone would reduce your moral culpability to some extent.
   4. Having said that, in light of the matters I have set out when dealing with the gravity of your offending, your moral culpability nevertheless remains high. In respect of the connection between the offending and your intellectual disability, Dr Fratti opines:

While [your] mild intellectual disability and significant language disorder contribute to [your] social, emotional, and behavioural immaturity, it is crucial to recognise that these cognitive impairments and mental health factors cannot fully explain the alleged offending behaviour [...] Albeit rejecting the accusations, [you have] demonstrated an understanding of the societal wrongfulness of such sexual conduct.

1. Your life long cognitive deficits, including during the offending period and currently, allow me to reduce the emphasis on just punishment, denunciation and general deterrence. In Clifton, the Court of Appeal observed:

The appellant has a significant intellectual disability that impairs his ability to reason as a normal person would. The existence of this disability reduces - but does not eliminate - his moral culpability and makes him a less suitable vehicle for general deterrence, punishment and denunciation.

1. However, I make it plain, that despite a reduction in emphasis, your offending against a very young and vulnerable child still requires your offending conduct to be denounced. Further, you remain a suitable vehicle for deterring others from committing offending of this grave nature.
2. In light of your youth at the time of the offending and the fact that you have not re-offended, I accept that lesser emphasis is required on specific deterrence. However, this sentencing purpose also remains important considering your continued denial of the offending and Ms Cidoni's risk assessment.[30]
3. I accept that principle five of Verdins is enlivened. This is your first experience of custody. Your intellectual disability and significant cognitive deficits will make imprisonment more burdensome on you.
4. Dr Fratti states:

In the event of a custodial disposition, [your] limitation secondary to [your] neurodevelopmental conditions must be taken into account. [You] will be unable to benefit from written or lengthy verbal information and would need extra time and guidance to learn and adapt to new tasks or requirements. In this sense, the evidence [is] that [your] present cognitive impairment may increase the burden of incarceration.

1. I also note the observations of Ms Cidoni which echo the opinion of Dr Fratti. Ms Cidoni has also diagnosed you with a Major Depressive Disorder, described as recurrent and moderate, and Anxiety Disorder. She states that there is no evidence that you experienced depression or anxiety in your childhood.[31]

1. The judge's reference to Muldrock was a reference to the High Court judgment in Muldrock v The Queen.[32] The judge's reference to Clifton was a reference to this Court's decision in Clifton v The King.[33] The judge's reference to Verdins was a reference to this Court's decision in R v Verdins.[34]
2. Prior to imposing the sentences referred to, the judge set out the relevant provisions of ss 6B, 6D, 6E and 6F of the Sentencing Act 1991.[35]
3. Section 6B(2) defines a 'serious sexual offender', which is then included in the definition of 'serious offender' in s 6B(3). The respondent was a serious sexual offender consequent upon his conviction on charges 1 and 2. Section 6D(a) provides that in sentencing a serious offender the court must regard the protection of the community as the principal purpose for which sentence is imposed. Section 6D(b) provides for the imposition of a sentence longer than that proportionate to the gravity of the offence, but no such sentence was sought in this case. Section 6E reverses the usual presumption as to concurrency in relation to serious offenders. It provides that, unless otherwise directed by the court, sentences imposed on a serious offender for a relevant offence are to be served cumulatively.[36] Section 6F(1) requires that the fact that an offender has been sentenced for a relevant offence as a serious offender is to be entered in the records of the court.

1. In order for the DPP to succeed on an appeal as to sentence on the basis of manifest inadequacy it must be shown that it was not reasonably open to the sentencing judge to come to the sentencing conclusions which they did if proper weight had been given to all of the relevant circumstances of the offending and the offender.[37]
2. Section 289(1) of the Criminal Procedure Act 2009 provides that on an appeal by the DPP, the Court of Appeal must allow the appeal if the DPP satisfies the court that:

(a) there is an error in the sentence first imposed; and

Thus, even when satisfied that there has been an error in the sentence first imposed, the Court of Appeal has a residual discretion to dismiss an appeal by the DPP by reason of the circumstance that it must also be satisfied that a different sentence should be imposed.[38]

1. As indicated, the focus of the DPP's complaints in relation to the sentence imposed is on the orders for cumulation of the sentences, or lack thereof. This Court has recently considered the issue of cumulation in cases of this kind; and the impact of the provisions of the Sentencing Act 1991 previously referred to, particularly ss 6D and 6E; in Director of Public Prosecutions v Dillon (a pseudonym)[39] and in Dyer v The King.[40]
2. The principles to be drawn from those recent decisions of this Court, insofar as they are relevant to the DPP appeal in this case, are the following:

(1) The sentencing judge's discretion to order cumulation, or where s 6E applies to direct that the sentence not be cumulated, is a very broad one.[41]

(2) Orders in relation to cumulation must reflect the differences in the seriousness of each offence and the different episodes of offending.[42]

(3) Whether or not cumulation is ordered will depend on whether each additional instance may be seen as having added to the total criminality of the offender's conduct.[43]

(4) Orders for cumulation ensure that each charge carries weight in the overall sentencing outcome, and ensure that offenders do not, and are not seen to, receive a 'discount' by reason of being sentenced for multiple charges on one occasion.[44]

(5) The provisions of ss 6D and 6E of the Sentencing Act 1991 have modified the role of the totality principle with respect to the sentencing of serious offenders. The full effect of totality is to be 'somewhat reduced' so as to give proper effect to the legislative intent manifested in those provisions.[45]

(6) In cases of multiple sexual offences, even those which involve the same victim, and where the offences are closely associated in time, some level of cumulation is very much to be expected.[46]

(7) Each case is fact dependent and it may be proper to order little or no cumulation where the offences are basically of the same order, and all committed at the same time against the same victim.[47]

Additional material filed on behalf of the respondent

1. Very shortly prior to the hearing, the respondent filed an affidavit by his sister deposing to matters in relation to his progress in prison. The respondent was given leave to rely upon the affidavit. The matters deposed to were said to be relevant to the exercise of the residual discretion, and to any resentencing if the DPP's appeal should succeed.
2. The respondent's sister deposed that 'incarceration has been very hard' for the respondent. She referred to the fact that he is illiterate and cannot read prison signs or documents. He has trouble interpreting people. She deposed that the respondent had been their mother's principal carer and that her illness and death had been hard on him. She said that the respondent has a 'current diagnosis' of Bell's palsy. She deposed that she had spoken with officials about the National Disability Insurance Scheme but had been told that there was not really anything that could be done for the respondent whilst he was in prison. She said that the respondent had reported a deterioration in his condition since moving prisons. She deposed that he has trouble remembering all the rules especially when they are posted in writing. She referred to 'several health issues' that concern the respondent and stated that there is a shortage of doctors available which is causing the respondent anxiety. She referred to the circumstances of their mother's death. She said that the respondent had been their mother's primary carer, and that he had been devoted to her, having lived with her for all but two years of his life prior to his incarceration. She referred to the fact that the respondent had told her that after their mother had died there was no use in him still living.

1. Senior counsel for the DPP submitted that the sentencing reasons themselves were entirely appropriate and that there was no complaint about any particular findings. She submitted that absent the issue with the orders for cumulation there would be difficulty in challenging the individual sentences themselves. She submitted that where the sentencing process had plainly gone wrong was in relation to the orders for cumulation.
2. Senior counsel for the DPP was asked whether there was any explanation for why the sentence on charge 7 was slightly higher than the sentences imposed on charges 2, 3, 5 and 6. Senior counsel suggested that gravity of the offending might have been seen to increase after the three prior incidents.
3. The DPP took no issue with the sentencing judge's assessment of the objective gravity of the offending or with his conclusions on the matters in mitigation.
4. There was, however, it was submitted, no explanation for the 'very meagre orders for cumulation'. Senior counsel observed that the effect of the cumulation orders made was that effective sentences of four months' imprisonment were imposed for the offences of sexual penetration of a child under 10 in each of incidents 1, 2 and 3. Whilst acknowledging that significant matters in mitigation existed, senior counsel for the DPP submitted that those matters could not justify a sentence as low as that imposed.
5. Addressing the affidavit of the respondent's sister and the residual discretion, senior counsel for the DPP pointed out that the respondent's Bell's palsy was a matter which existed at the time of sentence and was referred to in the material which was before the sentencing judge. The respondent had not been a participant in the National Disability Insurance Scheme prior to incarceration, so the position had not changed in that respect. She submitted that the respondent's problems with literacy were matters known at the time of sentence and were not a new factor. She submitted that the Court ought not to take into account hearsay evidence concerning the availability of proper medical care in the corrections system.
6. Senior counsel for the DPP submitted that this was not an appropriate case for the exercise of the residual discretion. It was not a case where there had been some error by the Crown, where the offender had received a community disposition and resentence would place him in incarceration, or where the offender was close to the end of a non‑parole period.
7. Senior counsel for the DPP submitted that on a resentence there should be an increase in cumulation for each incident with a consequent increase in the total effective sentence. Senior counsel suggested that the court should resentence in a way that 'incrementally' increased the effective sentence imposed from incident 1 to incident 4.
8. Senior counsel on behalf of the respondent submitted that the sentences imposed are explicable by reason of the 'powerful material in mitigation'. The respondent was a young offender with a lifelong intellectual disability. His disability was directly relevant to his moral culpability. His Honour had applied the principles in Muldrock concerning the sentencing of intellectually disabled offenders, which the prosecution had not submitted to be inapplicable.
9. There had been considerable delay which had had two impacts. First, the delay between the offending and the charging indicated that the respondent was not a risk to the community given that there had been no offending during that 30 year period. Secondly, the delay between charging and conviction had been onerous and difficult for the respondent.
10. When asked whether the sentences should have increased after incident 1, senior counsel for the respondent referred to the fact that incident 1 concerned offending against a six year old, which might have been a relevant factor, but then submitted that sentencing is a matter of 'instinctive synthesis' and that it is not necessarily a mathematical calculation. In relation to the slightly increased sentence for charge 7, he submitted that that offence occurred some months after the others which were 'somewhat proximate' to each other.
11. Senior counsel for the respondent emphasised that before the sentencing judge the issue that was 'front and centre' was the principle of totality. It was submitted that the orders made in relation to cumulation had to be seen in that context. He submitted that the orders made were open and that to the extent that the cumulation orders were found to be clement, there was room for clemency. Extensive reference was made to the psychological reports which had been before the sentencing judge, and to the respondent's intellectual disability. The psychological reports had emphasised that the respondent's disability would increase the burden of his incarceration, and it was submitted that this was a 'comparatively serious example' of the fifth way in which it was held in Verdins that impaired mental functioning was relevant to sentencing, being where the impaired mental functioning means that the sentence weighs more heavily on the offender than it would on a person in normal health.
12. Senior counsel for the respondent addressed what the sentencing judge had said about Muldrock and in particular his finding that notwithstanding the application of the principles set out by the High Court in Muldrock, the respondent's moral culpability 'nevertheless remains high'. Senior counsel for the respondent submitted that that was wrong if by 'high' the judge was to be understood as comparing the respondent's moral culpability with the moral culpability of other similar offenders. In this context, he relied, in particular, upon the following paragraph of the report of Ms Cidoni:

From 1993 to 1994, [the respondent] experienced significant cognitive impairment and likely intellectual disability. This impairment would have affected his ability to think clearly, make informed decisions, and understand the consequences of his actions. Combined with his substance use, these cognitive limitations could have contributed to impulsive and irrational behaviour during the offending.

1. Nevertheless, senior counsel accepted that the psychological evidence before the sentencing judge indicated that the respondent knew what he was doing was wrong and that he appreciated the 'moral wrongness' of the offending.
2. Addressing the residual discretion, senior counsel for the respondent submitted that this was an appropriate case for the exercise of the discretion because of the long delay, enabling a conclusion that there was 'no sign of future risk'; and because of all of the other mitigating features to which the sentencing judge had had regard. It was submitted that there was no sense in which the sentences imposed would 'shock the public conscience'.
3. In the course of his submissions senior counsel acknowledged that the respondent's mother had been known to be unwell at the time of sentence, but submitted that her death while he was in jail was a very serious matter which 'underlines even further' how important the fifth consideration in Verdins was in this case.
4. In relation to the possibility of resentence, it was submitted that any increase should be 'temperate' because the sentence imposed was not so light that it could be said to said to shock the public conscience. Further, the recent death of the respondent's mother was a reason to resentence in a 'very clement manner'.
5. In reply, senior counsel for the DPP submitted that the judge's conclusions concerning moral culpability and general deterrence were entirely appropriate and consistent with the psychological evidence which was before him.

1. The judge's sentencing reasons set out at [96]-[106] above are impeccable. We agree with all of the conclusions and analysis referred to in those paragraphs. For completeness, we read the judge's conclusion that the respondent's moral culpability 'remained high' as relating to his culpability in his particular circumstances (and not compared with the moral culpability of oth[48] similar offenders).48 The judge correctly accepted that the respondent's moral culpability for the offending must be reduced [49] line with Muldrock.49
2. A sentencing judge's discretion in relation to cumulation and concurrency is a very broad one. But, in our opinion, the orders made in relation to cumulation:

(1) failed to reflect the seriousness of each offence and the different episodes of offending;

(2) failed to reflect the fact that each additional incident added to the total criminality of the respondent's conduct;

(3) failed to ensure that each charge carried weight in the overall sentencing outcome and that the offender was not seen to receive a 'discount' by reason of being sentenced for multiple charges on one occasion; and

(4) failed to give effect to the modified role of totality required by the provisions of s 6D and s 6E of the Sentencing Act 1991.

1. There are features of the head sentences which are difficult to explain in the absence of explicit reasons from the judge. In relation to incidents 1, 2 and 3, the judge imposed the same sentence for each of the two sexual penetrations by tongue (charges 1 and 4 - 4 years and 8 months' imprisonment), and for each of the four penile penetrations (charges 2, 3, 5 and 6 - 6 years and 6 months' imprisonment). There is no augmentation for the increasing criminality of the respondent's conduct, but for the slightly longer head sentence for the penile penetration offence in incident 4 (charge 7 - 6 years and 8 months' imprisonment).
2. We accept the submission of senior counsel for the respondent that the exercise is not a 'mathematical' one, and, as senior counsel for the DPP frankly conceded, the DPP would have 'difficulty' in challenging the individual sentences themselves. In the circumstances, we would not interfere with the head sentences imposed.
3. The DPP's concern is the orders for cumulation. We agree with the DPP's characterisation of those orders as being 'very meagre', in circumstances where there are no explicit reasons for such orders for cumulation. Their effect is to impose an effective sentence of 4 months' imprisonment for each of three incidents of sexual penetration of a child under 10. Notwithstanding the significant matters in mitigation which undoubtedly do exist in this case, cumulation of that order for those offences is simply too low.
4. The submissions advanced on behalf of the respondent were perfectly valid so far as they went. As indicated, there were, and are, significant mitigating factors here. The respondent has an intellectual disability which attracts the principles the High Court set out in Muldrock. The delay of 30 years between the offending and the respondent being charged, during which period there was no further offending, is also significant. The fact that the respondent's intellectual disability will make prison significantly more burdensome for him is also important. But these are not factors which justify the extraordinarily low cumulation for three incidents of very serious sexual penetration of a young and vulnerable child, whose silence was obtained by threats and coercion.
5. The orders for cumulation are manifestly inadequate, and, as a consequence, the total effective sentence and the non-parole period are also manifestly inadequate.
6. This is not a matter where the residual discretion should be exercised. Nothing of relevance has occurred since the sentencing which would warrant a decision not to correct the errors made in the orders for cumulation.
7. We accept that upon a resentence there are reasons to approach this matter in a 'clement' manner, as senior counsel for the respondent submitted. In particular, we accept the evidence of the respondent's sister that the respondent has been deeply affected by the recent death of his mother, for whom he had cared and with whom he had lived for almost all his life prior to his incarceration. We also accept her evidence that the respondent has found his time in prison difficult in a number of ways. There must, however, be an increase in the orders for cumulation in relation to the sentences for each of the three incidents before the sentence in relation to the final incident, which is the base sentence. And the orders must reflect the modified role of totality as required by the provisions of ss 6D and 6E of the Sentencing Act 1991 in relation to the sentences imposed on the offences after charges 1 and 2.
8. In all of those circumstances we would allow the appeal and resentence the respondent in accordance with the following table:

1. The cumulation in relation to incident 1 remains at a modest level, being 12 months' imprisonment in total. In relation to only one of those offences (charge 3) the respondent is to be sentenced as a serious sexual offender, as denoted 'SSO' in the table.
2. The cumulation should increase for incident 2 'incrementally', as submitted by senior counsel for the DPP. Again, the cumulation proposed is still modest in the circumstances.
3. The cumulation in relation to incident 3 is the same as that in relation to incident 2, but that reflects the fact that there was only one offence of penetration in incident 3 whereas there were two offences of penetration in incident 2.
4. Finally, the base sentence remains unchanged.
5. In all the circumstances we would impose a total effective sentence of 10 years' imprisonment and set a new non-parole period of 6 years and 3 months.

[1] To ensure that there is no possibility of identification of a victim of sexual offending, this judgment has been anonymised by the adoption of a pseudonym in place of the applicant's name.

[2] As amended by the Crimes (Amendment) Act 2000.

[3] The complainant's date of birth is 23 October 1986.

[4] The applicant's date of birth is 22 February 1973, so he turned 19 in 1992 and 22 in 1995.

[5] See Jury Directions Act 2015, s 54D.

[6] See Jury Directions Act 2015, s 39.

[7] (2020) 268 CLR 123; [2020] HCA 12 ('Pell').

[8] Ibid 145 [39] (Kiefel CJ, Bell, Gageler, Keane Nettle, Gordon and Edelman JJ); [2020] HCA 12.

[9] Criminal Procedure Act 2009, s 276(1)(a)

[10] (1994) 181 CLR 487; [1994] HCA 63 ('M').

[11] Ibid 493 (Mason CJ, Deane, Dawson and Toohey JJ), 508 (Gaudron J).

[12] Ibid 501-2 (Brennan J), 525 (McHugh J).

[14] Pell (2020) 268 CLR 123, 146-7 [43] (Kiefel CJ, Bell, Gageler, Keane Nettle, Gordon and Edelman JJ); [2020] HCA 12.

[15] The majority held that all the convictions were unsafe and allowed the appeal. Gaudron J held only one of the convictions to be unsafe. Brennan and McHugh JJ would have dismissed the appeal.

[16] (2007) 230 CLR 559; [2007] HCA 30 ('Libke').

[17] Libke [2007] HCA 30; (2007) 230 CLR 559, 596-7 [113]; [2007] HCA 30.

[18] Pell (2020) 268 CLR 123, 146-7 [43] (Kiefel CJ, Bell, Gageler, Keane Nettle, Gordon and Edelman JJ); [2020] HCA 12.

[19] (2020) 268 CLR 123, 145 [39] (Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ) (citations omitted); [2020] HCA 12.

[20] [2024] VSCA 289 ('Cookson').

[21] Ibid [131] (McLeish, Boyce and Kaye JJA).

[22] M [1994] HCA 63; (1994) 181 CLR 487, 529; [1994] HCA 63.

[23] DPP v Lucas (a pseudonym) [2024] VCC 1972 ('the sentencing reasons').

[30] Ms Cidoni, a psychologist, examined the respondent and assessed his risk of reoffending as medium.

[31] The sentencing reasons (citations omitted).

[32] (2011) 244 CLR 120; [2011] HCA 39('Muldrock').

[33] [2024] VSCA 82.

[34] (2007) 16 VR 269; [2007] VSCA 102 ('Verdins').

[35] The sentencing reasons, [77]-[80].

[36] Here, a relevant offence is a sexual offence, being an offence to which cl 1 of sch 1 of the Sentencing Act 1991 applies.

[37] DPP v Karazisis [2010] VSCA 350; (2010) 31 VR 634, 662-3 [127] (Ashley, Redlich and Weinberg JJA); [2010] VSCA 350.

[38] As to the residual discretion generally, see DPP v Browne (2023) 103 MVR 226, [2023] VSCA 13. It is unnecessary here to address the issue of whether a residual discretion exists independently of s 289(1)(b).

[39] [2025] VSCA 266 (Walker, Orr and Kidd JJA) ('Dillon').

[40] [2025] VSCA 314 (Taylor, Boyce and Orr JJA) ('Dyer').

[41] Dillon [2025] VSCA 266, [60]; Dyer [2025] VSCA 314, [42].

[42] Dillon [2025] VSCA 266, [61].

[45] Dyer [2025] VSCA 314, [42]; Dillon [2025] VSCA 266, [63]-[66].

[46] Dyer [2025] VSCA 314, [42].

[48] We also agree with that conclusion in light of all the evidence, in particular the evidence of Dr Fratti (see the sentencing reasons, [70], quoted at [105] above) and the matters accepted by senior counsel for the respondent, referred to in [127] above.