CRIMINAL LAW - Application for leave to appeal against sentence - Whether total effective sentence of 5 years and 6 months' imprisonment, with non-parole period of 3 years and 6 months manifestly excessive - Whether sufficient weight given to applicant's youth - Application for leave refused.

1 Brett Neubecker ('the applicant') was convicted by a County Court jury of one count of persistent sexual abuse of JF, a child under the age of 16 years, contrary to s 47A(1) of the Crimes Act 1958. The maximum penalty for that offence is 25 years' imprisonment.[1]

2 After hearing a plea in mitigation of sentence, the learned trial judge sentenced the applicant, who was then aged 22 years, to a total effective sentence of 5 years and 6 months' imprisonment, with a non-parole period of 3 years and 6 months.

3 The applicant now appeals, with leave, against his conviction, and seeks leave to appeal against his sentence.

4 The offence of persistent sexual abuse requires proof that the accused committed a sexual offence of a specified kind[2] on at least three separate occasions.[3] At trial, the Crown relied on evidence of seven separate offences, which were allegedly committed between 1 January 2007 and 31 July 2008 when JF was aged between 12 and 13 years and the applicant was between 18 and 20 years old.

5 The applicant got to know the complainant and his family after he became friends with the complainant's oldest brother, BF, several years before the offence was committed. During the period of offending, the complainant lived with his mother and a younger brother at Crib Point. BF was living with friends on French Island, and the complainant visited him there from time to time. The applicant resided at the French Island house for a short time. In April 2007, he moved into the complainant's house in Crib Point, with the complainant, and the complainant's mother and brother.

6 The seven occasions on which the Crown relied to establish the offence can be briefly described as follows.

• On 1 January 2007, when they were both staying at the French Island house, the applicant told the complainant to get into bed with him. He fellated the complainant and then made the complainant fellate him.
• On another occasion during the relevant period, the complainant accompanied the applicant to the house of Neil Le Sueur, for whom the applicant had previously worked. Two acts of fellatio occurred and the applicant rubbed the complainant's genitals.
• When the applicant moved into the complainant's family home in Crib Point in around April 2007, mutual oral sex occurred while the complainant and the applicant were sharing a bedroom.
• The complainant gave evidence that he was required to fellate the applicant when they visited the applicant's mother's house and she was not at home.
• The applicant took the complainant for a drive in a red car and parked his car on the side of a road 'ages away from everything'. He put his chair back and made the complainant fellate him.
• The applicant drove the complainant to Esso in Hastings one night and parked his vehicle in bushland, where he told the complainant to fellate him, which he did.
• On another night, the applicant drove the complainant to Woolies Beach in Crib Point, where he lay on the sand and asked the complainant to fellate him, which he did.

7 I describe the offences which occurred on these seven occasions as the 'charged acts', although they were relied upon in proof of a single offence.

8 In his VATE evidence, JF also referred to sexual offences of a similar nature committed against him by the applicant during the same period as the charged acts. These were:

• Immediately before the first two charged acts occurred on 1 January 2007, the applicant and the complainant went to the Hastings Marina. The applicant asked the complainant to have oral sex with him and when the complainant refused, he threatened to kill the complainant if he told anyone;
• Shortly before the third charged act which occurred at Mr Le Sueur's house, the applicant tried to force the complainant to kiss him. The complainant also said that the applicant would nag him for sex and 'get like real aggressive' and 'kept on asking and asking'.
• Acts of oral penetration occurred on a number of occasions in a shed.
• Acts of oral penetration occurred on a number of occasions at the applicant's mother's house. (As I have said, one of these incidents was relied upon as a charged act.)
• A number of unspecified sexual incidents occurred at the Hastings Marina.
• Acts of oral penetration occurred in the applicant's car. (One of these incidents was relied upon as a charged act.)

9 The applicant denied that any of the offences occurred. He alleged that JF had made false allegations against him because of an argument they had had about use of a PlayStation. He also contended that JF was angry with him because the applicant had asserted authority over JF as a father figure, and he had reprimanded JF for his apparent lack of respect for others.

10 The applicant's sole ground of appeal against conviction was that:

The learned trial judge erred in failing to direct the jury that the jury could not use, or act on the basis of, the evidence given by the complainant of the sexual offences committed by the applicant (other than the 7 offences relied upon by the Crown to prove the offence charged) unless satisfied of same to the standard of beyond reasonable doubt.

11 In his charge to the jury, the learned trial judge directed the jury on use of the evidence of uncharged acts as follows:

That evidence that does not directly relate to the offences that the Crown relies on or that Mr Neubecker's been charged with, ordinarily you would not hear such evidence. Because you must base your decision solely on the evidence relating to the charges that has been given. But the evidence has been given in this case, if accepted by you, because it provides you with background information that you may find relevant when assessing and evaluating the other evidence.

There are two ways in which you can use this evidence. First, you may use it to help you to understand the nature of the relationship between the accused man and [JF]. This may help to explain some of the evidence. That is, for example, it may aid you to make a proper assessment of [JF's] conduct or state of mind, for example, as to why he submitted to relevant acts or failed to complain earlier. For example, it may help to explain, or not, why he sought the companionship of Mr Neubecker or why he asked frequently to be present when Mr Neubecker would go out and so on and so forth. So it may help you and is relevant to that particular aspect of the evidence.

It may shed light and help your assessment on the accused's state of mind, on his conduct or his motives. For example, the frequency and the variation of locations may help to explain why the accused felt able to act in this particular brazen manner. And it may go to the credibility of the complainant, why the conduct alleged is plausible, despite the unusual nature of the allegations for example. So I am just giving you examples of how it may be of assistance to you. That is the first way.

Secondly, this evidence may enable you to understand the evidence relating to each count in a more complete and realistic context and setting. It may assist you to appreciate the significance of what might otherwise seem to be perhaps more isolated or unexpected events. It is important that you only use this evidence about the relationship between the accused and the complainant for these two purposes only, and only if you accept that it is true and helps to explain the evidence and the relationship and the context.

If you do not believe the evidence or do not think that it provides you with any assistance, then you should disregard it and concentrate on the instances on which the Crown relies, if you find them proven. This is important. You must not use this evidence for any purpose other than what I have just described to you. In particular, you must not substitute the evidence of the relationship between the accused and [JF] for the evidence that directly relates to the charge. That is, you must not reason that because the accused has in some general, unspecified way said to have taken part in a sexual penetration in those other places, then he must also have done it on the occasions charged.

For example, let us say you find the incident at the Hastings marina or his description about the shed to have been credible, but the Crown does not rely on it, and you say, 'Well, we've got a doubt about all of those other seven occasions, or most of them, not enough to give us the three, but we believe what is said about that so therefore he must have done it on the other occasions that the Crown relied on.' You cannot use the evidence that way. You must not use it that way.

Similarly, you must not use this evidence to decide that the accused is the kind of person who is likely to have committed the offences charged and to use this conclusion as evidence of guilt. That kind of reasoning is prohibited. Your decision must be based only on the evidence given in the case, not an assumption about the kinds of people who commit these crimes.

12 Counsel for the applicant submitted that the judge's direction on uncharged acts and particularly his explanation that the evidence of uncharged acts could be used 'to assess the accused's state of mind, conduct or motives' created a real risk that the jury would use the evidence of the uncharged acts to support a conclusion that the applicant had an unhealthy sexual interest in the complainant and treat the existence of this interest as an essential link in their process of reasoning towards guilt.[4]

13 Counsel for the applicant submitted that, in these circumstances, R v Sadler[5] required the jury to be directed that they could not rely on the evidence of the uncharged acts to establish that an accused had a sexual interest in the complainant unless they were satisfied beyond reasonable doubt that these acts had occurred. His Honour's failure to give such a direction had resulted in a substantial miscarriage of justice, because the jury might have applied a less rigorous standard of proof in deciding whether the uncharged acts had occurred and then gone on to reason that the applicant must have committed the offence with which he had been charged.

14 The applicant's counsel argued that there was nothing else in the charge that would have informed the jury about the standard of proof they had to apply if they were to use the uncharged acts to establish that the applicant had a sexual interest in the complainant. He relied on a number of other decisions of this Court where the charge as a whole had been held insufficient to alert the jury to the need to be satisfied beyond reasonable doubt that the uncharged acts had occurred.[6]

15 Counsel for the Crown argued that nothing in the conduct of the trial would have led the jury to rely on the uncharged acts to establish that the applicant had a sexual interest in the complainant or had a tendency to sexually abuse the complainant. The evidence of the uncharged acts was of a general nature and was led solely for the purpose of explaining why the complainant had not resisted the acts giving rise to the charge and had not immediately complained to anyone about them. Accordingly, there was no real risk that the jury could have used the uncharged acts as evidence that the accused had a sexual attraction for, or interest in, the complainant.

16 Further, even if there was such a risk, the judge's charge as a whole contained ample warnings that the jury could not use the evidence of uncharged acts as an essential link in the chain of reasoning towards the applicant's guilt, unless they were satisfied beyond reasonable doubt that the uncharged acts had actually occurred.

17 The Crown also argued that Sadler had wrongly held that the decision of the High Court in HML v The Queen[7] applied in Victoria, so that the trial judge was required to direct the jury on the standard of proof if there was 'a real risk' that the jury would use uncharged sexual acts as a sufficiently important step in their reasoning towards guilt.[8] HML was said to be confined to jurisdictions in which the common law principle in Pfennig v The Queen[9] applied. In support of that argument, counsel relied on a number of appellate court decisions in Western Australia and Queensland.[10]

18 Finally, counsel for the Crown argued that, even if Sadler applied prior to the enactment of the Evidence Act 2008, it was no longer good law in Victoria. Section 97 of the Evidence Act 2008 now prohibits the admission of tendency evidence unless a tendency notice has been served on the accused[11] (or the judge dispenses with that requirement) and the trial judge is satisfied that the evidence has significant probative value and that its probative value substantially outweighs its prejudicial effect.[12] Where evidence is not admitted for a tendency purpose under s 97, it cannot be used for that purpose.

19 It was submitted that, as a consequence, evidence of uncharged sexual acts which is not admitted for tendency purposes has the same status as any other circumstantial evidence, making it unnecessary for the trial judge to direct the jury that the uncharged acts had to be proved to the criminal standard. Counsel relied on New South Wales authority[13] and on the recent decision of this Court in SWC v The Queen[14] in support of that submission.

20 Counsel submitted that although this Court rejected the argument that Sadler should not be followed in SJF v The Queen[15] and had applied Sadler in Wilson v The Queen,[16] both of those decisions related to convictions in trials held before the Evidence Act 2008 came into operation.[17]

21 In R v Sadler,[18] the Court summarised the law in Victoria (at least as it stood prior to the Evidence Act 2008) as follows:

In face of the competing views expressed in HML, we respectfully understand the ratio of the decision to be limited to this: that where evidence of uncharged sexual acts is admitted under the common law test propounded in Pfennig,[19] and a priori the evidence is relied upon as a step in reasoning to a conclusion of guilt, the jury must be directed that they cannot find that the accused had a sexual interest in the complainant unless satisfied of that beyond reasonable doubt.

Despite the strength of the judgments of Kirby and Hayne JJ (and thus of Gummow J) and the observations of Heydon J, as to the need for uncharged sexual acts to be proved beyond reasonable doubt in jurisdictions where Pfennig provides the criteria for admissibility, the majority of judges in HML did not express any clear view as to whether uncharged sexual acts must always be proved beyond reasonable doubt.

We further observe that two members of the majority (Kirby and Heydon JJ) expressly limited the decision in HML to jurisdictions in which Pfennig is still the law and, on one view of Hayne J's reasoning, his Honour's conclusion was similarly limited.[20] If we may say so with respect, it appears more likely that his Honour's reasoning was intended to apply to all Australian jurisdictions. But even if that is so, as a matter of stare decisis we consider that the ratio of the decision must still be understood as limited to Pfennig jurisdictions.[21]

With respect, therefore, on a strict analysis, we understand the law for the time being to remain that evidence of uncharged sexual acts, like evidence of other uncharged acts, may be tendered as relationship evidence put forward as demonstrating the context in which the charged offence was committed, and that, generally speaking, if it is tendered for that purpose alone, as opposed to establishing a sexual interest in the complainant and a disposition on the part of the accused to act to gratify that interest, it is not necessary for a trial judge to give separate directions about the standard of proof applicable to such uncharged acts, unless the judge perceives that the jury are likely to use the uncharged acts as a step in the reasoning towards guilt or that it is unrealistic to contemplate that any reasonable juror would differentiate between the reliability of the complainant's evidence as to the uncharged acts and as to the charged acts.

If so, it follows that the standard of proof applicable to uncharged acts, and the directions to be given to the jury as to the use which they may and may not make of evidence of the uncharged acts, will continue to vary according to whether the Crown relies on the evidence of uncharged acts to establish a propensity to commit acts of the kind which are charged or merely for contextual and explicative purposes of the kind adumbrated by Crennan and Kiefel JJ in HML.[22]

22 Their Honours explained that in Victoria, prior to HML, evidence of uncharged acts was admissible for purposes other than establishing a propensity to commit offences of the kind charged, where the evidence made a complainant's account of the charged acts intelligible in circumstances where a description of an apparently isolated act might otherwise appear implausible. They said that the position in Victoria remained the same after HML, with one exception:

having regard to what was said by Kirby, Hayne (and thus Gummow) and Heydon JJ, as to the likelihood of a jury treating uncharged sexual acts as evidence of propensity (regardless of the purpose for which it is tendered or the directions which may be given as to its use), we consider that there is one critical difference. Pending further guidance from the High Court, a judge should ordinarily assume that there is a real risk of the jury using evidence of uncharged sexual acts as a sufficiently important step in their process of reasoning to guilt to warrant particular mention and, therefore, the judge should ordinarily direct the jury that they should not conclude from the evidence of uncharged acts that the accused had a sexual interest in the complainant unless they are satisfied of those acts beyond reasonable doubt_._[23]

In the discussion below, we refer to the requirement to direct the jury on the standard of proof when there is a 'real risk' that the uncharged acts will be used as evidence of propensity as 'the Sadler requirement'.

23 At the trial, the defence case was that none of the seven charged acts had occurred. The complainant's evidence of the uncharged acts was relied upon by defence counsel in order to attack the complainant's credibility. It was put to the complainant in cross-examination that if the alleged uncharged acts had occurred, he would not have gone out with the accused in his car, or gone into a bedroom or into the shed with him.

24 Similarly, in his closing address, counsel for the defence relied on evidence of the complainant's apparent closeness to the accused, in support of the case that none of the alleged sexual acts had occurred. He referred to the complainant's evidence that shortly before the first charged act, the applicant had asked him for oral sex and had then threatened to kill him if he told anyone. Defence counsel said that if this had occurred, it was entirely improbable that later on the same evening the complainant would have stayed in the same room as the accused or that he would have got in a car with the accused the next day.

25 Similarly, defence counsel argued that the complainant's evidence of the charged acts should be rejected because notwithstanding the allegations leading to the charge, the complainant had asked the applicant if he could go out in his car with him on a number of occasions, had slept in the same room with him and had gone into the shed with the applicant more than once, although he alleged that sexual incidents had occurred there.

26 In his closing address, counsel for the Crown relied on the uncharged acts solely as evidence of relationship or context. The prosecutor told the jury that they should bear in mind that the accused was a friend of the complainant's family and that the complainant was of an age where he was unsure about his sexuality. He said that the jury could accept evidence of the uncharged acts 'beyond reasonable doubt' if it:

tends to show a particular relationship between the two and that is to say that it wasn't sort of out of the blue that one of these incidents happened. It was going on continuously and that because it happened so often it might explain to you why the accused man was so brazen in the way he used to do these things simply to get away with it even though the whole of the family's around the place and slip into bed and have his way. It can explain why the complainant might have just thought, 'This is par for the course, (indistinct),' but it's not something that is part of the acts that the prosecution says they are, that the prosecution says is one of the three acts that we must prove.

27 Counsel for the Crown referred to 'incidents at the Hastings marina' and said that these were relevant to the relationship between the parties. He also referred to alleged incidents which occurred in the shed and to the complainant's answer to a question in crossexamination about what he thought would happen when he went into the shed when he responded 'Nothing the first couple of times and then it started to sink in'.

28 Finally, counsel for the Crown told the jury that, in considering why the complainant might initially have delayed in complaining about the charged acts, the jury should take into account his relationship with the accused, his age, the fact that he was discovering his sexuality and the fact that eventually 'it's got to the stage where he has got a bit sick of it all'.

29 Counsel for the applicant contended that his Honour's statement that the evidence of uncharged acts:

may shed light and help your assessment on the accused's state of mind, on his conduct or his motives. For example, the frequency and the variation of locations may help to explain why the accused felt able to act in this particular brazen manner

amounted to a direction that the jury could rely on the uncharged acts as evidence that the applicant had an unhealthy sexual interest in the complainant. Accordingly, the judge was required to direct the jury that they must be satisfied beyond reasonable doubt that the uncharged acts had occurred.

30 We would reject that submission for the following reasons.

31 First, it is clear from the conduct of trial that the Crown relied on the complainant's evidence of uncharged acts solely for the purposes of putting the acts in context and explaining why the complainant did not tell anyone about the offending immediately after it had occurred. The Crown did not file a notice under s 97 of the Evidence Act 2008 seeking to admit evidence of the uncharged acts as evidence of the accused's tendency to act in a particular way. Nor did the Crown ever suggest that the evidence could be used to show that the accused had a sexual interest in the complainant. In his closing address, the prosecutor referred to the evidence of the uncharged acts in order to explain the complainant's apparent acquiescence in the sexual acts and to refute the defence claim that the charged acts could not have occurred.

32 Counsel for the applicant conceded that if the use of that evidence was confined to the purpose of establishing the context in which the charged acts occurred, and to assist them to understand why the complainant behaved as he did, no direction on the standard of proof was required. We consider that this concession was appropriate. As Ashley JA observed in SWC v The Queen:[24]

If the evidence was received for a non-tendency purpose, then it had the status of any other circumstantial evidence in the case. In those circumstances...the uncharged acts did not have to be proved to the criminal standard.[25]

33 In BBH v The Queen,[26] Hayne J repeated the criticism he had previously made in HML about reliance on the distinction between evidence described as evidence of relationship or context, and evidence of 'guilty passion' (or as it is now more frequently described, evidence of sexual interest) to determine whether evidence of discreditable acts of the accused other than charged acts is admissible.[27] In his view, it was critical for the judge to tell the jury:

(a) that the jury may not act upon the evidence [of uncharged acts] unless satisfied of it beyond reasonable doubt and (b) that, if accepted, the evidence shows that the accused had a sexual interest in the complainant on which, on other occasions, the accused had acted.[28]

34 Like HML, BBH was an appeal from a jurisdiction in which Pfennig continued to apply. Moreover, as in HML, the Court was divided on the bases on which evidence of uncharged acts was admissible. In their joint judgment in BBH, Crennan and Kiefel JJ repeated their view that uncharged acts evidence is admissible to render the complainant's evidence explicable.[29] Bell J agreed with her judicial sisters' comments about 'the distinction between the use of evidence that incidentally reveals propensity and evidence of propensity adduced in proof of guilt'.[30]

35 There is nothing in BBH which requires us to depart from the distinction drawn in Sadler between evidence adduced to prove propensity and evidence relied on to make a complainant's account more intelligible by placing it in a realistic context.

36 In this case, the evidence of uncharged acts was relied upon solely to establish the relationship between the complainant and the accused, and to show the context in which the charged acts occurred. His Honour was not required to give directions relating to an issue which was not raised in the trial. Apart from the brief reference to the accused's state of mind, there was no basis on which the jury could have considered that the Crown was relying on the uncharged acts to demonstrate that the accused had a sexual interest in the complainant.

37 On the day before he gave the direction set out in paragraph [11] above, the judge told the jury that he would direct them as to how the evidence of uncharged acts could be used 'to create a context within which to place the allegations and to define the relationship between [the applicant] and [JF] to help you to make an assessment about that'. In his later direction on this matter, the judge did not say anything suggesting that the complainant's evidence of uncharged acts could be used to show that the accused had a sexual interest in the complainant, or that he had a tendency to commit sexual offences against the complainant. Having regard to the way the trial was conducted and in the context of a direction that the uncharged acts could be used only to establish context or relationship, we do not consider there was any real risk that the evidence would be used for an illegitimate purpose.

38 Secondly, we note that some of the uncharged acts were immediate precursors to charged acts and could not 'easily have been disentangled' from evidence relating to the charged acts.[31] The applicant's initial request at the Marina that the complainant have sex with him and the applicant's request that the complainant kiss him before the acts which allegedly occurred at Mr Le Sueur's house could only ever have been regarded as evidence of context. The other uncharged acts which the complainant alleged had occurred were very general in nature. If the jury had not been satisfied beyond reasonable doubt that the complainant's evidence of the charged acts should be accepted, his evidence of uncharged acts could have provided little, if any support, in bolstering the complainant's evidence.

39 Thirdly, assuming that the Sadler requirement continues to apply after the Evidence Act 2008 came into operation, we do not consider that there was any real risk that the jury would have used the evidence of uncharged acts as an essential link in the chain of reasoning towards the applicant's guilt having regard to the terms of the jury direction.

40 The judge directed the jury that the evidence could be used only for the purposes of establishing the relationship between the complainant and the accused or the context in which the charged acts occurred. He told the jury that they must not reason that because the accused was 'in some general, unspecified way said to have taken part in a sexual penetration in those other places, then he must also have done it on the occasions charged'. He also gave the jury a strong warning against propensity reasoning. Both the anti-substitution warning and the propensity warning were linked to the direction given about use of the evidence of the uncharged acts.

41 Finally, although the trial occurred in 2010, two years after Sadler was decided, defence counsel did not ask the judge to direct the jury on the standard of proof applicable to the evidence of uncharged acts. Nor did he object to the direction which was actually given. Defence counsel's failure to object to the direction indicates that he did not perceive any risk that the jury would rely on the uncharged acts as an essential link in their chain of reasoning towards guilt.

42 Even if we are wrong in that view, we consider that the charge as a whole would have been sufficient to warn the jury that if they relied on the uncharged acts as evidence that the applicant had an unhealthy sexual interest in the complainant, they had to be satisfied beyond reasonable doubt that the uncharged acts had occurred.

43 At the beginning of the charge, his Honour directed the jury about the criminal standard of proof and said that:

unless I tell you otherwise, this is what I mean when I use words like 'prove' or 'establish a matter' or 'satisfaction' about a matter; I mean beyond reasonable doubt.

44 In a passage on which the applicant's counsel relied, he then said that:

The prosecution does not have to establish every single fact that they allege to this standard. It is the essential ingredients; it is the elements of a charge that they must prove to this standard and I will tell you in a moment what it is that those elements are. I will explain those elements in detail to you - hopefully in a clear fashion - and relate them to the evidence if I can in this case.

45 Shortly afterwards, his Honour explained what was meant by inferential reasoning, using an example. He said that:

Because of the serious nature of a criminal trial, you must be very careful about the way that you reason and only rely on reasonable inferences. So there are two rules that you must abide when you engage in inferential reasoning, or drawing of inferences. The first is that you are satisfied beyond a reasonable doubt of the facts upon which you base that inference; so the base facts from which you are to draw conclusions must be proven beyond reasonable doubt. Secondly, that you are satisfied that the inference that you want to draw is the only reasonable inference to be drawn from those facts.

If it is not the only reasonable inference then there will be an inference that is consistent with innocence and you will not and should not draw the inference for guilt because if there is another reasonable inference open, you must have a reasonable doubt. That is how it works.

So, establish facts - facts proven beyond reasonable doubt. Am I required to draw an inference from those facts? Yes. Are they proven beyond reasonable doubt? Yes. Can I draw the inference from them? I can draw an inference. Is it the only reasonable inference that I can draw? Or are there other reasonable alternatives? So, it is the only reasonable inference I can then - you can draw.

...

In determining whether an inference is a reasonable inference, you have to consider all of the evidence. Do not disregard an item of evidence because when you consider it alone, it does not support a reasonable inference. For instance, it would not be reasonable of me to step out and from the single fact that in front of my door the ground is wet for me to infer that it has rained. It only becomes reasonable, when I take into account that the cars are wet, the trees are wet, there are grey clouds in the sky, the forecast was for rain, then I can draw the inference, safely, that it rained.

The opposite is also true. This does not mean that you should not consider each individual piece of evidence carefully. It is your duty to do so. You may only base your decision on evidence that you accept to be true. But in order to determine which evidence to accept, and what inferences to draw, you must consider the evidence as a whole.

46 His Honour then referred briefly to some of the uncharged acts and said that he would tell the jury how they could use this evidence 'to create a context within which to place the allegations, and to define the relationship between [the applicant] and [JF] to help you to make an assessment about that, if you will accept that that evidence is true'.[32]

47 His Honour went on to discuss the evidence relating to the seven occasions on which the Crown relied to establish the offence and directed the jury on the elements of the offence. He then referred to the allegations of uncharged acts and directed the jury in the manner set out in [11] above. As we have said, his Honour told the jury that they could only use the uncharged acts evidence for the purpose of establishing relationship or context and again told them that they could only do so 'if you accept that the evidence is true and helps to explain the evidence and the relationship and the context'.

48 Counsel for the applicant submitted that the jury would not have understood that the direction on inferential reasoning applied to the uncharged acts and that his Honour's statement that 'the prosecution does not have to establish every single fact that they allege to [the criminal standard]' could have been understood by the jury as permitting them to reason that the accused was guilty because of the evidence of one or more of the uncharged acts, without being satisfied beyond reasonable doubt that the acts had occurred.

49 In support of that submission, he relied on Wilson v The Queen.[33] In Wilson, this Court considered the effect of a trial judge's instruction, which was given the day before she directed the jury on the use of evidence of uncharged acts, that 'the jury could not infer the existence of any element of the charge or the guilt of the accused...unless satisfied beyond reasonable doubt of all the facts necessary to make that inference'.

50 In their joint reasons, Redlich JA and Kyrou AJA (Maxwell P concurring) noted that it had never been customary to direct juries that the use of uncharged acts involved a process of inferential reasoning. The Court held that the direction on inferences would not have been understood by the jury as applying to the uncharged acts, or to the use which could be made of evidence relating to them.[34]

51 Counsel also submitted that the direction that the jury could rely on evidence of uncharged acts 'only if you accept that it is true', would not have been understood by the jury as requiring proof beyond reasonable doubt. He relied on the decision of this Court in SJF v The Queen,[35] where Buchanan JA said the following:

Counsel for the respondent submitted the jury would have understood 'find to be true' as equivalent to 'be satisfied' and thus that they were required to use the evidence of uncharged acts only if they were established beyond reasonable doubt.

I do not accept this submission. Assuming that the jury recalled the trial judge's preliminary remarks when they retired to consider their verdict, I do not think it likely that they would have taken the judge to have been referring to the criminal standard of proof in dealing with uncharged acts, for her Honour used different terminology in explaining her shorthand reference to the requirement of proof beyond reasonable doubt and later dealing with the evidence of uncharged acts. The expression 'find to be true' said nothing about the standard of proof.[36]

52 We would accept counsel for the Crown's submission that it is of little assistance to consider the way that particular words used in a different charge have been interpreted by this Court. This particular jury charge must be examined as a whole, in light of the trial which was conducted.

53 If it were necessary to direct the jury on the standard of proof applicable to the uncharged acts, we consider that the judge did so. We would reject the argument that the jury would have regarded the direction on inferences as inapplicable to the evidence of uncharged acts. Further, in giving his direction on inferences, the judge told the jury that the prosecution had asked them to rely on circumstantial evidence in support of the Crown case and said that:

if there was any reasonable explanation of those circumstances, which is consistent with the accused's innocence, then the prosecution will not have proved his guilt beyond reasonable doubt, and you will acquit him.

54 The jury could only have understood this direction as including reference to the relationship evidence. Moreover, defence counsel himself submitted that there was a real risk that the jury could have used the uncharged acts as the basis for an inference that the accused was guilty of the charged offences. It is not to be expected that a lay jury would differentiate between the directions given to them by reference to categories such as 'directions on inferences' or 'directions on uncharged acts', which are familiar only to lawyers. Unlike the direction in Wilson v The Queen, the judge's direction on inferences was not confined to the elements of the offences.

55 We also consider that the judge's instruction (given twice) that the jury could not use the evidence of uncharged acts unless they accepted that it was 'true' could not have been understood by the jury as meaning anything other than that the uncharged acts were required to be proven beyond reasonable doubt. In that respect, we note that the instruction on the criminal burden of proof which is given to juries in New Zealand tells them that they must be 'sure' of matters relevant to the guilt of the accused. A requirement to be satisfied that an allegation is 'true' carries similar force in ordinary parlance.

56 Moreover, even if a direction to the jury that they must be satisfied that an allegation is true is not always an adequate direction on the requirement to apply the criminal standard of proof, in this case the judge told the jury that when he used words like 'satisfaction' he meant beyond reasonable doubt. Because of that earlier instruction, we consider that the judge's reference (twice) to the need to accept that the uncharged acts were 'true' would have been regarded by the jury as having the same meaning. It cannot be imagined that because his Honour used the verb 'accept', rather than referring to the jury's 'satisfaction', they would have reasoned that 'true' permitted the application of a lower standard of proof.

57 To summarise, we consider that if the Sadler requirement was applicable, the judge's charge as a whole satisfied it.

58 In light of that conclusion, it is unnecessary to decide whether the Sadler requirement continues to apply following the enactment of the Evidence Act 2008. In DJV v The Queen,[37] the New South Wales Supreme Court held that if evidence of uncharged acts is admitted to establish context, it is unnecessary to direct the jury that the acts be proved beyond reasonable doubt, although the jury must be warned that they cannot rely on the evidence of uncharged acts to reason that the accused must have committed the charged acts.[38] Such a direction was given in this case.

Application for leave to appeal against sentence

59 The applicant seeks leave to appeal against sentence on the following two grounds:

Ground 1 The learned sentencing judge failed to give any, or sufficient, weight to the age of the applicant at the time of the offending.

Ground 2 The sentence imposed is, in all the circumstances of the case, manifestly excessive.[39]

60 In his sentencing reasons, the learned trial judge noted that the applicant was 22 years old[40] and had no prior criminal history.[41]

61 His Honour referred to the witness statements prepared by the complainant and his mother, and described the 'significant problems' experienced by the complainant, including depression and attempted suicide. His Honour concluded that '[t]hese are the consequences of the trauma which this type of long term and persistent sexual abuse causes'.[42]

62 His Honour noted the importance of addressing general deterrence.[43] With respect to the issue of specific deterrence, his Honour stated that:

Though you were a youthful offender, your victim was very young and vulnerable and this was not a case which could be explained or ameliorated by proximity of age. Your abuse was brazen, persistent, callous and oppressive. You display no measure of remorse or even regret, which is a concern and heightens the need for specific deterrence. However, you were young and that fact must be taken into account by me because of the factors which that age brings into play. That is: reclamation and rehabilitation are important aspects that I take into account.[44]

63 The judge described the applicant's relationship with the complainant's family as an adverse feature of his offending, stating that:

The fact is that you abused this relationship of trust and friendship. This sentence must be a vindication of rights abused by you and attribution of responsibility to you, the perpetrator, and acknowledgement of your moral culpability in particular in the context of this protracted period of offending.[45]

64 The learned sentencing judge referred to a report prepared by Mr Jeffrey Cummins, a forensic and clinical psychologist, who noted that the applicant had been defensive when answering questions about his sexual inclination and had reiterated his innocence to him. Mr Cummins' conclusion was that the applicant should complete a group-based sex offender treatment program. His Honour said that the applicant's 'asserted innocence, lack of demonstrable remorse and relative indifference to [his] current predicament' in discussions with Mr Cummins indicated that his prospects of rehabilitation were 'guarded'.[46]

65 His Honour took into account the passage of time and delay since the offending,[47] and noted in favour of the applicant that he had continued to 'work steadily' with the matter hanging over him.[48]

66 The judge rejected the applicant's submission that if any sexual contact occurred, it was 'practically consensual',[49] and concluded instead that '[t]his, in my view, was predatory behaviour coupled with abuse of trust and use of influence to achieve sexual gratification'.[50] His Honour also described the age difference between the applicant and complainant as 'significant'.[51]

67 In support of ground 1, counsel for the applicant submitted that the trial judge had given too much weight to the principle of general deterrence, having regard to the youth of the offender at the time the sexual offending had occurred. The judge was also said to have given insufficient weight to the applicant's youth in assessing the gravity of his offending, his moral culpability and his prospects of rehabilitation.

68 The applicant also relied on the above matters in support of ground 2. The applicant was said to have been significantly disadvantaged by the delay which occurred between the offending and the imposition of sentence. It was submitted that if he had been sentenced closer to the time when the offences were committed, the sentencing judge would have been required to give greater weight to his rehabilitation, and reduced weight to general deterrence.

69 The Crown submitted that his Honour took account of the fact that the applicant was a youthful offender, but correctly took the view that the applicant's moral culpability and the seriousness of his offending outweighed the mitigating effects of his comparative youth. His Honour had had regard to all relevant sentencing matters and the sentence imposed was within the permissible range of options available to the judge, given the seriousness of the offending.

70 In support of those submissions, the Crown referred to the 19 months period of time over which the offending occurred, the callous, persistent and brazen nature of the applicant's conduct, the effects of the abuse on the complainant, and the applicant's lack of remorse and poor insight into the effects of what he had done.

Conclusion on application for leave to appeal against sentence.

71 Ground 1 is probably to be regarded as a particular of the ground of manifest excess. As Maxwell P said in Gorladenchearau v The Queen:[52]

Axiomatically, a complaint about the weight given to a particular sentencing consideration is not a ground of appeal. As this court has explained in Director of Public Prosecutions (Vic) v Terrick[53] and again in Scerri v R,[54] the bringing together of relevant considerations in a sentencing decision does not involve - could not involve - the attribution of quantitative significance to individual qualitative factors.[55] The only way in which this court can evaluate a complaint about the weight given to a particular consideration is as a particular of the manifest excess ground. Under that ground, the court will examine the sentence actually imposed, and ask whether it was reasonably open to the judge to impose that sentence if appropriate weight were given to all relevant factors.[56]

72 The judge was required to take account of the applicant's youth, psychological immaturity and lack of prior convictions and to give considerable weight to the applicant's rehabilitation.[57] All of these matters were specifically acknowledged in his Honour's sentencing reasons.

73 However, this was a case in which the applicant's youthfulness and rehabilitation had to be subjugated, to some extent, to sentencing factors arising from the gravity of the offending and the applicant's moral culpability for it.[58] All but one of the acts relied upon to establish the offence of persistent sexual abuse involved penetration. The complainant did not tell anyone about the abuse because of the pressure brought to bear on him by the applicant. As his Honour said, the offending was predatory and persistent and involved frequent breaches of trust. The applicant is not remorseful for the offending, which has had lasting ill-effects on the complainant.

74 The ground of manifest excess can only be made out if it is:

obvious, plain, apparent, easily perceived or understood and unmistakable. It must be so far outside the range of reasonable discretionary judgment as to itself bespeak error.[59]

75 In our view, the head sentence did not fall outside the range of his Honour's sentencing discretion.

76 For these reasons, we would refuse the application for leave to appeal against sentence.

[1] Crimes Act 1958, s 47A(4).

[2] Offences falling within Subdivisions 8A, 8B or 8C of Part 1, Division 1 of the Crimes Act 1958.

[3] Crimes Act 1958, s 47A(2).

[4] Compare PPP v The Queen (2010) 27 VR 68, 74-5 [19].

[5] [2008] VSCA 198; (2008) 20 VR 69 ('Sadler').

[6] In particular, he relied on SJF v The Queen [2011] VSCA 281, [33] (Buchanan JA) and Wilson v The Queen [2011] VSCA 328.

[7] [2008] HCA 16; (2008) 235 CLR 334 ('HML').

[8] He relied on Shepherd v The Queen [1990] HCA 56; (1990) 170 CLR 573.

[9] [1995] HCA 7; (1995) 182 CLR 461.

[10] PIM v Western Australia [2009] WASCA 131; (2009) 196 A Crim R 516 ('PIM'), 525-6 (Wheeler JA, who did not decide the issue), 550-1 (Pullin JA), 586 (Buss JA, who agreed with the analysis of this Court in Sadler); Stubley v State of Western Australia [2010] WASCA 36, [4] (Owen JA expressing some support for Sadler), [159]-[160] (Pullin JA expressing the same view as in PIM), [389]-[394] (Buss JA expressing the same view as in PIM); KMB v State of Western Australia [2010] WASCA 212, [3] (Pullin JA), [76]-[78] (Buss JA expressing the same view as in PIM), [153] (Mazza J); R v RAE [2008] QCA 385; [2009] 2 Qd R 463, [50]-[76] (Daubney JA, with whom Muir JA and McKenzie AJA agreed). In that case, no reliance was placed on uncharged acts to establish that the accused had a sexual interest in the complainant, and the judge gave a propensity warning.

[11] Evidence Act 2008, s 97 (1)(a).

[12] Ibid s 97 (1)(b) and s 101.

[13] DJV v R [2008] NSWCCA 272; (2008) 200 A Crim R 206, 217.

[14] [2011] VSCA 264, [14] (Ashley JA).

[15] [2011] VSCA 281, [27]-[28] (Buchanan JA , with Warren CJ and Sifris AJA agreeing).

[16] [2011] VSCA 328, [168]-[174] (Redlich JA and Kyrou AJA, with Maxwell P agreeing).

[17] Note, however, that Redlich JA referred to that Act at paragraph [177].

[18] [2008] VSCA 198; (2008) 20 VR 69.

[19] Namely, that the evidence sought to be admitted supports the inference that the accused is guilty of the offence charged, and the evidence sought to be admitted is open to no other, innocent, interpretation.

[20] HML v The Queen [2008] HCA 16; (2008) 235 CLR 334, 365 (Kirby J), 383-4, 390 (Hayne J), 431 (Heydon J).

[21] Great Western Railway Co v Owners of SS Mostyn [1928] AC 57, 73-4; Victoria v Commonwealth [1971] HCA 16; (1971) 122 CLR 353, 382; Federation Insurance Ltd v Wasson [1987] HCA 34; (1987) 163 CLR 303, 314; Re Tyler; Ex parte Foley [1994] HCA 25; (1994) 181 CLR 18, 37.

[22] [2008] VSCA 198; (2008) 20 VR 69, 87-8.

[24] [2011] VSCA 264.

[26] [2012] HCA 9 ('BBH').

[31] BBH v The Queen [2012] HCA 9, [74] (Hayne J).

[33] [2011] VSCA 328.

[35] [2011] VSCA 281, [33] (Buchanan JA, with Warren CJ and Sifris AJA agreeing). The trial was held in August 2008.

[37] [2008] NSWCCA 272; (2008) 200 A Crim R 206, 217 (Mc Lelland CJ at CL, with Hidden and Fullerton JJ agreeing).

[38] See also DTS v R (2008) 192 A Crim R 216-217 (Beazley JA, with Kirby and Hall JJ agreeing).

[39] During the appeal, the applicant's counsel confirmed that the failure to give sufficient weight to the applicant's youth constituted a separate ground of appeal, and was not merely a particular of the ground of appeal relating to manifest excess.

[40] Director of Public Prosecutions v Brett Neubecker (Unreported, County Court of Victoria, Judge Gucciardo, 11 February 2011), [20].

[49] See now Clarkson v R; EJA v R [2011] VSCA 157.

[52] [2011] VSCA 432, [34]. See also CF v The Queen [2012] VSCA 22, [14]; cf, R v Bernath (1997) 1 VR 271, 277 (Callaway JA).

[53] [2009] VSCA 220; (2009) 24 VR 457, 459-60 [5].

[54] [2010] VSCA 287, [22]-[24], [30].

[55] See also Mamonitis v The Queen [2011] VSCA 370, [8].

[56] Clarkson v The Queen [2011] VSCA 157, [89].

[57] R v Mills [1998] 4 VR 235; see also R v Boland [2007] VSCA 242; (2007) 17 VR 300.

[58] Compare R v Thanh Phong Tran [2009] VSCA 252, [28] (Coghlan AJA, with Maxwell P agreeing).

[59] Hanks v The Queen [2011] VSCA 7, [22] (Bongiorno JA).