NWL v Regina

Crimes Act LEGISLATION CITED: Crimes (Sentencing Procedure) Act Criminal Appeal Rules

Jones v The Queen (1997) 191 CLR 439 M v The Queen (1994) 181 CLR 487 CASES CITED: MFA v The Queen (2002) 213 CLR 606 R v Bonora (1994) 35 NSWLR 74 R v Cramp [2004] NSWCCA 264 R v Habib [2005] NSWCCA 223

COUNSEL: PM Miller - Crown J Doris - Appellant

SOLICITORS: S Kavanagh (Solicitor for Public Prosecutions) Murray Dribbus Sols - Appellant

IN THE COURT OF CRIMINAL APPEAL 2005/1848

JAMES J BUDDIN J HALL J

Wednesday 29 March 2006 NWL v REGINA Judgment 1 JAMES J: At a trial held in the District Court before his Honour Judge Phelan and a jury the appellant was found guilty of nine charges of aggravated indecent assault (counts 1-7, 9 and 11 in the indictment) and three charges of inciting a person above the age of sixteen years to commit an act of indecency (counts 8, 10 and 12 in the indictment). The only other charges in the indictment were alternative charges of less serious offences to some of the charges of aggravated indecent assault and, having regard to the jury's verdicts of guilty on all of the charges of aggravated indecent assault, no verdicts were taken on the alternative charges. 2 The complainant on all of the charges was a male person born on 28 August 1978, who I will refer to simply as "the complainant". It was alleged by the Crown that the offences charged had been committed at various times between October 1993 and December 1996. 3 Judge Phelan sentenced the appellant on count 1 to imprisonment for a fixed term of one year commencing on 1 November 2004, the date on which the jury returned their verdicts of guilty and the appellant, who had previously been on bail, was taken into custody; on each of counts 8, 10 and 12 to imprisonment for a fixed term of one year commencing on 1 November 2005; and on each of counts 2-7, 9 and 11 to a non-parole period of three years commencing on 1 November 2005 with a balance of term of two years. The total effective sentence was, accordingly, a total period of imprisonment of six years, with non-parole periods totalling four years. 4 In the event of his appeal against conviction being dismissed, the appellant seeks leave to appeal against the sentences imposed on him by Judge Phelan.

The Crown Case at the Trial 5 The principal Crown witness was the complainant and I will briefly summarise some of the complaint's evidence. 6 The complainant was born on 28 August 1978. 7 As a child the complainant lived very close to a golf course, which I will refer to simply as "the golf course". The complainant's father introduced him to playing golf when the complainant was only eight or nine years old. 8 The complainant first met the appellant, who was the professional golfer at the golf course, when he was about ten years old. The complainant participated in golf clinics for children run by the appellant. 9 When the complainant turned twelve, he became a junior member of the golf club at the golf course. From then on he would often play some holes on the golf course with the appellant, in the afternoon or evening after the complainant had finished school. 10 One evening on the golf course, when the complainant was thirteen years old, the appellant told the complainant that he "loved" the complainant. The complainant said, "I love you too mate". The complainant said this "because he was my idol… I loved golf and I looked up to him". 11 One day in the appellant's house the appellant and the complainant were watching a video. The appellant was massaging the complainant's shoulder. The appellant lent over and kissed the complainant on the head. The complainant was shocked and jumped up. The appellant apologised for what he had done. 12 On an occasion in October 1993 in a bedroom at the appellant's house the appellant began massaging the complainant. The appellant removed the complainant's shorts and masturbated the complainant until he ejaculated (count 1 in the indictment). In his evidence the complainant described himself as feeling "very uncomfortable" and "sort of frozen" and as having no idea of what the appellant was doing. The complainant told the appellant to stop but the appellant kept saying "relax" and "it'll be okay". 13 In November 1993 the appellant and the complainant went together to Norfolk Island on a five day trip to play golf. They stayed at the house of a friend of the appellant's, using the same bedroom. The complainant gave evidence:- "…it happened at least three times while we were there during the trip that he would either get into my bed or ask me to come and get into his bed. And he would touch me and massage me and he also - I remember took my hand and put it on his penis". 14 While the appellant and the complainant were on Norfolk Island, the appellant began crying and told the complainant that he was going to a cliff on Norfolk Island. The complainant feared that the appellant was going to commit suicide. The appellant returned to the house where they were staying and rushed into the bathroom. The complainant found the appellant in the bathroom with his head in a basin, which was full of water. The complainant thought that the appellant was trying to drown himself. This incident had "a big time effect" on the complainant. 15 In January 1994 the appellant and the complainant went together to the Royal Pines Resort on the Queensland Gold Coast to play golf. The appellant paid for the trip. Before going to Queensland, the appellant had provided the complainant with a set of golf clubs and a number of items of golf clothing. 16 The following questions and answers occurred in the complainant's evidence in chief:- "Q. What were the sleeping arrangements while you were in Queensland? A. As I said there was a fold out bed in the bottom part and of an evening Noel would encourage me to come into his bed and sleep, sleep in his bed. Q. Did you? A. I did. Q. What happened in his bed? A. I remember him just playing, playing with my penis and massaging, the same as previous times, and I was, again I was very, very uncomfortable with it all and. Q. Did you say anything to him about it? A. Yeah, I just told him I didn't want it like last time. Q. What did he say? A. He would just keep trying to reassure me with 'it's okay' and it's okay with what's happening and to relax and. Q. How many nights did this type of activity happen while you were in Queensland? A. It happened on most of the nights while we were there, I think probably again, probably three or four times". 17 When asked by the Crown prosecutor how he felt when he got back from Queensland, the complainant said that he was "totally confused" and did not know what to do. The complainant still looked up to the appellant. The complainant wanted himself to become a professional golfer and all he wanted to do was to play golf. 18 In early 1994 the complainant was struggling, confused and upset with what was happening and one day he kicked a hole in the fibro wall of his bedroom at his home. The next night the complainant's mother came into the bedroom and found the complainant crying. The complainant's mother asked what was happening and why the complainant was crying and the complainant told his mother that the appellant had told the complainant that he loved him and that the appellant had kissed the complainant. 19 The appellant had in fact on a number of occasions kissed the complainant on the lips and had told the complainant that he loved him. The appellant had also asked the complainant whether the complainant loved the appellant. The complainant gave evidence "some times I would reply and then other times I wouldn't. Most of the time I would nod or I would say yes but most of the time I would just nod". 20 On the morning after the complainant's conversation with his mother she asked the complainant more questions and the complainant told his mother that the appellant had physically touched him. 21 The complainant did not recall any family meeting with the appellant but later in the trial his parents gave evidence of such a meeting. The complainant did recall that one day when the complainant was riding to school, the appellant, who was driving a car, stopped the complainant and asked the complainant what he had told his mother. The complainant replied to the appellant "nothing, I'm not telling you anything" and the complainant kept riding. 22 For two or three months from February 1994 to about April or May 1994 the complainant did not play golf. The complainant then resumed playing golf, which was what he wanted to do. 23 The complainant had a conversation with the appellant:- "I told him that I didn't want to - I just want to come back, I just want to play golf and that's all I want to do. That's all I want to concentrate on, and Noel promised me that nothing would happen again". 24 In the year 1994 the appellant would sometimes take the complainant to Sydney in the appellant's car, so that the complainant could play in junior golf tournaments. On these trips the appellant would sometimes put his hand on the complainant's thigh and would sometimes take the complainant's hand and put it on the appellant's thigh. 25 On an occasion in the second half of 1994 the appellant and the complainant went to the complainant's home. The complainant's parents were out. The appellant massaged the complainant, removed the complainant's pants and masturbated the complainant until he ejaculated (count 2 in the indictment). The following questions and answers occurred in the complainant's evidence in chief:- Q. Did you say anything to him when this was happening? A. I was just, you know I was just uncomfortable and - " Q. Did you want this to happen? A. Not at all, I just didn't know what else to do". 26 Later in 1994, in the complainant's bedroom at the complainant's home, the appellant massaged the complainant's penis until it became erect and then took photographs of the complainant with a polaroid camera (count 3 in the indictment). Subsequently, the complainant asked the appellant what the appellant had done with the photographs and the appellant told the complainant that he had got rid of the photographs. Later, the complainant saw the photographs at the appellant's pro shop at the golf course. The complainant grabbed the photographs, got some scissors and cut the photographs into very small pieces. 27 The following questions and answer occurred in the complainant's evidence in chief:- "Q. That incident with the photo, when he fondled your penis till you got an erection, did you want that to happen? A. No, not at all". 28 The complainant gave evidence in chief as follows:- "A. There was many times where I'd - you know I just wanted - I'd say to him that I was going to tell someone and I'd - you know I couldn't handle it any more and I wanted it to stop and I'm going to tell my parents and he'd like start or I remember one time it was at his place, it was in his lounge and he was crying again and I told him I was going - I wanted to tell someone and it just - that happened, you know, numerous times and I just - eventually you know I'd end up saying it's all right, it's okay and then it just kept going, that just went on and on and on and I just - I can't believe I just put up with it all the time because I just, just felt like I had to just - felt like I had to just keep going, going along with it, you know, because I never had to pay for any of my golf equipment or anything like that, I just thought it was my only, my only way of keep doing what I wanted to do and golf and just, eventually I just -". 29 In June 1995 the appellant drove the complainant to Mollymook to play in a golf tournament held over a weekend. The appellant and the complainant stayed at the home of a friend of the appellant's, who had a son named Scott. The appellant and the complainant shared a bedroom. On the Friday night the appellant masturbated the complainant until he ejaculated (count 4) and "I remember this time he got me to do the same to him". 30 The following questions and answers occurred in the complainant's evidence in chief:- "Q. Did you want him to masturbate you? A. No, I just remember it as, just trying to be as quiet as possible, because I knew Scott's room was next door and I didn't want to make any noise and I just remember just telling myself that it'd be over soon, because all I was concentrating on was golf the next day and just tell myself it'd be over and kept thinking about the golf the next day just to get, so I didn't think about it. Q. Did you want to masturbate him? A. No. Q. Did you do it? A. Yes. Q. Why did you do it? A. Because I just, I just, just did it to keep him happy". 31 On the following night the "same thing" happened again (count 5). The complainant gave further evidence:- "A. Well, massage, play with my penis till I got an erection, masturbated till I ejaculated and then cleaned me up and then I did the same to him". ….. "Q. Did you want to be masturbated by him? A. No. Q. Did you want to masturbate him? A. No". 32 In July 1995 the complainant went with his parents to Coffs Harbour to play in a golf championship. He stayed at Coffs Harbour with his parents. The appellant met the complainant at Coffs Harbour. The appellant bought the complainant an expensive golf jacket. At the time the appellant gave the jacket to the complainant he asked the complainant whether he loved the appellant and kissed the complainant. 33 The complainant left school in September 1995, because he wanted to become a professional golfer. In order to become a professional golfer the complainant had to reduce his golf handicap and serve an apprenticeship with a professional golfer. The complainant had it in mind to be apprenticed to the appellant. The complainant's goal during the rest of 1995 and in 1996 was to reduce his golf handicap, so that he could commence his apprenticeship in 1997. The complainant began working part-time in the appellant's pro shop at the golf course and would see the appellant practically every day. 34 In about 1995 the appellant moved to a new house he had built, not far from the golf course. The complainant said that a number of incidents between the appellant and himself occurred at the appellant's new house but he remembered two incidents particularly, because they were "a bit different" from the others. 35 On one occasion the appellant put a battery powered massage machine on the complainant's penis until the complainant ejaculated (count 6). The complainant was asked in his evidence in chief:- "Q. Did you want him to do that?" A. "No, as I said, by this point I was just - I don't know, I couldn't tell anyone, I just felt like I just had to go along with it. He'd often say that, you know, it was okay what was happening. I was always unsure but I just didn't know what else to do". 36 On the other occasion the appellant put on a pornographic video and the appellant "took my pants off, played with me till I got an erection, masturbated me 'till I ejaculated (count 7). I did the same to him (count 8)" 37 The following questions and answers occurred in the complainant's evidence in chief:- "Q. Did you want him to masturbate you on that occasion? A. Never, I never wanted it, I just -- Q. Did you want to masturbate him? A. No". 38 At Easter 1996 the appellant and the complainant went to Norfolk Island. They stayed at the house of a friend of the appellant's, using the same bedroom. At night, "we'd go to bed and same as the other .. times". The appellant told the complainant that he loved him, kissed the complainant and masturbated the complainant until he ejaculated. 39 In April 1996 the appellant and the complainant went to the North Coast, so that the complainant could play in an amateur tournament near Coffs Harbour. The appellant and the complainant stayed at a resort at Sawtell. In their room at the resort the appellant masturbated the complainant (count 9) and the complainant masturbated the appellant (count 10). "He massaged me and encouraged me to do the same to him". The following questions and answers occurred in the complainant's evidence in chief:- "Q. Did you want him to do what he did to you that night? A. No, Q. Did you want to masturbate him? A. No". 40 In June 1996 the appellant and the complainant went again to Norfolk Island. They stayed at a guesthouse which was being run by a friend of the appellant's Mr Graham Struthers. The complainant said in his evidence "the usual masturbating and massaging and kissing happened most nights". One night "I remember him starting to suck my penis and I was just frozen, I didn't know what to do and I just remember thinking that I was in another country and I just wanted to go home". The complainant tried to push the appellant away. The appellant stopped for a moment, then said "relax, its okay" and the appellant "kept going". 41 In July 1996 the appellant and the complainant and the complainant's parents went to Coffs Harbour for a golf tournament. The appellant and the complainant shared the same room. At nights the same sort of conduct occurred again between the appellant and the complainant. The complainant said in his evidence, with respect to the appellant:- "I was totally confused … I didn't know what to do … I still looked up to him". 42 At some time in the second half of 1996 in the appellant's bedroom in the appellant's new house conduct occurred between the appellant and the complainant which the complainant described as follows:- " A. I remember, I remember him just massaging and rubbing as usual and he asked me to do the same to him and then I just remember him asking me if I would suck his penis. Q. Did you? A. No what I, I can't believe I actually thought about it and I just kissed it once and I felt sick and I just stopped straight away and, and I just masturbated him and he would ask me to stop, he wanted to wait a little bit and I just kept going because I just wanted to finish and leave. Q. You said before he asked you to suck his penis that he'd rubbed you, where had he rubbed you? A. What did you say, what did you say? Q. Where did he rub you? A. He rubbed my body and my penis and -- Q. Did you ejaculate on that occasion? A. Yes. Q. Did you want any of that sexual activity? A. No not at all". 43 The complainant's evidence about the conduct on this occasion gave rise to counts 11 and 12 in the indictment. 44 At the end of 1996 the complainant undertook an examination to determine whether he would be permitted to begin a golf apprenticeship, apprenticed to the appellant. The appellant caddied for the complainant in the playing part of the examination and provided a reference for the complainant. In January 1997 the complainant commenced an apprenticeship with the appellant and the complainant worked for the appellant in his pro shop. 45 The complainant said in evidence that in the second year of his apprenticeship:- "A. ..I just remember this snapping and just going crazy and screaming and swearing at Noel. And I was telling him, I told him I was going home to tell my parents and I didn't care what he said and I just, just walked off because I could walk home and I just walked up the ninth fairway and walked home. And I just remember, I can't remember exactly what I said to my parents but I, I just remember Noel coming over that night and my parents speaking to me and I told them that, I told them the same things were happening again". 46 After this meeting no further sexual activity occurred between the appellant and the complainant. The complainant completed his three year apprenticeship with the appellant. 47 In May 2003 the complainant first made a statement to police about what he said had happened between himself and the appellant. 48 At the conclusion of the complainant's evidence in chief the following questions and answers occurred:- "Q. Can I just ask you this finally … in relation to any of the sexual conduct that you've told the members of the jury that happened between you and Mr Laman, did you consent to any of it? A. No. Never, I never said I wanted to, never. Q. Did you want any of it to happen? A. No." 49 Early in the cross-examination of the complainant the following questions and answers occurred:- "Q. You say don't you that any sexual activity between the two of you was without your consent? A. Yes. Q. You did not want to become involved in any sexual activity? A. No".

It is clear, in the context, that the answer "no" to the second question meant that the complainant was agreeing with what had been put to him in the question. 50 The complainant's mother and father also gave evidence in the Crown case. Their evidence confirmed a number of parts of the complainant's evidence. The complainant's parents gave evidence about a meeting or meetings with the appellant in early 1994 and a further meeting with the appellant, which the complainant's parents said had happened in 1998. 51 The complainant's mother gave evidence that one evening in early 1994 she went into the complainant's bedroom to say good night to him. Her evidence continued:- "…he was buried under the bed covers very upset and sobbing and I asked him what was wrong and at first he didn't want to tell me what was wrong and I questioned him and I asked him was it school, because he'd just gone back to school and he was crying quite uncontrollably and said that everything would be spoiled or ruined, some words to that effect and I said, what's wrong, what's wrong and he said Noel said he loved me and kissed me". 52 The complainant's parents had a meeting with the appellant. At this meeting the complainant's mother said to the appellant:- "A. I said to him that (the complainant) told me that you said that you loved him and kissed him and he just said whatever (the complainant) said is what happened and at this stage he started to go red in the face and he was upset and I was upset, …. and he continued to say that he was sorry and it shouldn't have happened and he promised that nothing like that would ever happen again and he continued to tell me that something had happened to him when he was a boy". 53 The complainant's mother spoke again to the complainant, who said that the appellant had "touched" him. 54 The complainant's parents had a further meeting with the appellant. At this meeting the appellant was very apologetic, said that what had happened should not have happened and promised that it would not happen again. 55 The complainant's parents cancelled the golfing trip which they had proposed to take with the appellant to Norfolk Island. 56 On an occasion which the complainant's mother said was in about April or May 1998 the complainant told his mother that the appellant was coming to their house that night. The appellant came to the house. In the presence of the appellant the complainant said "Mum, it never really stopped. Only, only for the few months I was away". The complainant's father said that he could not believe what he was hearing. The appellant said that he loved the complainant. The complainant's father told the appellant to leave the house. 57 The complainant's father gave evidence that at a meeting in early February 1994 the appellant had said that he loved the complainant and had kissed the complainant. The appellant said it should never have happened. The appellant was holding his head in his hands and crying. The complainant's father asked the appellant to leave the house. There was another meeting with the appellant in which the appellant said that the conduct would never happen again. The complainant's parents cancelled their proposed golfing trip to Norfolk Island with the appellant. 58 The complainant's father gave evidence that on an occasion which he said was in May or June 1998 the appellant had come to the complainant's parents' home, after the complainant had told his parents that the appellant was coming. The complainant's father asked the appellant "what is happening between you and (the complainant)?" and the appellant replied "it should never have happened. It won't happen again".

The Defence case at the Trial 59 The appellant gave evidence in his own case at the trial. The appellant had been the professional at the golf course since 1987. He had come to know the complainant's parents as members at the golf course. The complainant had first come to the appellant's notice in 1993. The complainant was more interested than the other junior members - "he'd hang around a bit more and we'd play holes in the afternoon". 60 The appellant had for a number of years frequently taken groups of members at the golf course to Norfolk Island. 61 In November 1993 the appellant had gone to Norfolk Island with the complainant for five to seven days. The complainant had asked to go and the complainant's parents had paid his airfare. In Norfolk Island the appellant and the complainant stayed at a house which a friend of the appellant's Graham Struthers was minding for the owners of the house. The appellant denied that while he and the complainant were at Norfolk Island he had touched the complainant inappropriately in any way. The appellant denied that during the trip to Norfolk Island he had cried and become hysterical or that he had threatened to commit suicide or that he had put his head in water in a basin in a bathroom. 62 In January 1994 the appellant and the complainant had gone together to the Royal Pines Resort on the Queensland Gold Coast. The complainant had asked the appellant if he could go. The appellant denied that any sexual activity had occurred on the trip. The appellant had given the complainant a set of golf clubs and some golf clothes but he had done the same for other junior members at the golf course. 63 In the first week of February 1994 the complainant told the appellant that his parents wanted to see the appellant and the appellant had gone to the complainant's parents' home. At the complainant's parents' home the complainant's mother and the complainant's aunt told the appellant that the complainant had told them that the appellant had said to the complainant that he loved the complainant and that he had kissed the complainant. The appellant denied to the complainant's mother and to the complainant's aunt that such conduct had occurred. The appellant said that on one occasion the complainant had become upset while watching a tape recording at the pro shop at the golf course and the appellant had "roughed his head with my hand and kissed him on top - well pecked him on the top of his head and that was it". The appellant also told the complainant's mother that on another occasion, when the complainant was not playing golf well and had lost his temper, the appellant had given the complainant a pep talk and afterwards the complainant had said "why are you so good to me?" and the appellant had said "because I love you mate". 64 About a week later the complainant's parents and the complainant's aunt had come to the appellant's home. "Everything was okay and cleared up". 65 The appellant denied that at any meeting with the complainant's parents or either of them in early 1994 he had been accused of touching the complainant. 66 For a short period in 1994 the complainant had stopped playing golf but he soon returned to playing. The appellant denied that he had promised the complainant that "nothing would happen again". 67 The appellant denied that any sexual activity had taken place between the appellant and the complainant at the complainant's home. 68 The appellant had gone with the complainant to Mollymook. The appellant and the complainant had shared a bedroom in the house of a friend of the appellant's. There was no other available bedroom in the house. The appellant denied that any sexual activity had occurred at Mollymook. 69 The complainant had gone to Coffs Harbour with his parents and the appellant had joined them. Nothing of a sexual nature had happened between the appellant and the complainant at Coffs Harbour. 70 The complainant left school in about September 1995. The complainant had said that he wanted to become a professional golfer. Up until the time that the complainant left school aged seventeen, nothing of a sexual nature had taken place between the appellant and the complainant. 71 The complainant began working in the appellant's pro shop at the golf course. The appellant and the complainant played together on various golf courses in an endeavour to reduce the complainant's golf handicap so that he could commence an apprenticeship as a professional golfer. 72 The appellant asserted that prior to the appellant going to America in September 1996 nothing of a sexual nature had occurred between the appellant and the complainant. 73 After the appellant returned from America sexual activity did for the first time take place between the appellant and the complainant, in late 1996, at a house the appellant had moved into in February 1995. Sexual activity between them at this house had continued until November 1998, when the appellant sold the house. The sexual activity took the form of masturbation and was consensual. The complainant had come to the appellant's house twice a week and the appellant had given the complainant a key to his house. A massage machine had been used. On one occasion the appellant, at the complainant's request, had taken photographs of the complainant. These photographs had been ripped up by the complainant later the same day. 74 Sexual activity took place between the appellant and the complainant at the appellant's parents' home, when the appellant was living there in early 1999 and up to May 1999. On three or four occasions between March and May 1999 sexual activity had taken place at the complainant's parents house. 75 Consistently with his assertion that sexual activity had occurred for the first time in late 1996, the appellant denied that any sexual activity had taken place between the appellant and the complainant, when they had gone together to Norfolk Island at Easter 1996 or when they had gone together to Sawtell in late April 1996 or when they had gone to Norfolk Island in mid 1996. 76 In late 1996 the appellant had given the complainant a reference in connection with the complainant becoming a professional golfer. 77 The appellant agreed that a meeting with the complainant's parents had taken place but said that the meeting had taken place, not in 1998, but on 30 May 1999. The appellant sought to support his evidence about when the meeting had taken place by references to entries in his 1999 diary. 78 The appellant said that there had been an argument between the appellant and the complainant at the golf course "because I didn't put his footy tips in". The appellant had said he would go to the complainant's parents' house and did so. The appellant told the complainant's father that "we need to talk" and the complainant's father called the complainant's mother. The complainant himself was sitting in the room. The appellant's evidence continued:- "A …and I looked at them and I said ' Look, you know what we talked about a few years ago?', and basically they just looked at me not really knowing where I was going to go, and I said 'Well, this time things did happen', I said 'There was no intercourse but things did happen', and they - and (the complainant) started crying and he sort of cried the entire time, and then (the complainant's father) and (the complainant's mother) basically just looked at me and I think (the complainant's father) said sort of 'When did this start"' or 'How long has it been going for?', and I said it was about two, two and a half years, and one of them said like 'was that during the apprenticeship?', and I said 'No, it was the start of the apprenticeship', and (the complainant) was still crying and (the complainant's mother) said to (the complainant) 'It's not good crying, it's not just (the appellant's) fault, it's your fault too, you're old enough', and then I think one of them said to me' - I was sitting there sort of didn't know what to say. Q. You've heard some evidence from (the complainant) and from (the complainant's father) and (the complainant's mother) did anyone ask (the complainant) about whether he loved you? A. Yeah, I think it was (the complainant's mother) that said 'Do you love (the appellant)?', he was crying, I don't think he even answered and then she said 'You must have because it wouldn't have happened if you didn't". 79 After this meeting the appellant had expected that the complainant would not continue his apprenticeship but the complainant had come back about a week later and asked whether he could continue his apprenticeship. The complainant had completed his apprenticeship at the end of 1999. Subsequently the complainant had worked for the appellant for a couple of weeks in February 2000 and after that there had been further contacts between the appellant and the complainant. In 2003 there had been discussions between the appellant and the complainant about the complainant working for the appellant. 80 Other witnesses for the appellant were Mr Graham Struthers and Mr David Cambourn. 81 Mr Struthers gave evidence about the premises in which he lived at Norfolk Island and the visits of the appellant and the complainant to Norfolk Island. Mr Struthers had never observed any reluctance on the part of the complainant to be with the appellant. 82 Mr Cambourn, a professional golfer who was about the same age as the complainant, gave evidence about his association over a number of years with the appellant and what he had observed about the relationship over a number of years between the appellant and the complainant.

Convictions in Dispute 83 As I stated at the beginning of this judgment, the appellant was found guilty at the trial of nine charges of aggravated indecent assault (counts 1-7, 9, and 11 in the indictment) and of three charges of inciting a person above the age of sixteen years to commit an act of indecency (counts 8, 10 and 12 in the indictment). 84 Aggravated indecent assault is and was at all relevant times an offence under s 61M(1) of the Crimes Act, for which the maximum penalty is imprisonment for seven years. In count 1 in the indictment the circumstances of aggravation alleged by the Crown were that the complainant was under the age of sixteen years at the time of the indecent assault, which was alleged to have occurred in October 1993. In counts 2-7, 9 and 11 the circumstances of aggravation alleged by the Crown were that the complainant was under the authority of the appellant at the times when the indecent assaults were alleged to have occurred. The complainant had attained the age of sixteen years when these offences were alleged to have been committed or the Crown was unable to prove that the complainant had not attained the age of sixteen years when these offences were alleged to have been committed. 85 Section 77 of the Crimes Act provides and at all relevant times has provided that the consent of a complainant is not a defence to a charge under s 61M(1) of the Crimes Act, if the complainant was under the age of sixteen years at the time when the offence charged is alleged to have been committed. In the present case the complainant was under the age of sixteen years at the time when the offence charged in the first count in the indictment was alleged to have been committed and, accordingly, any consent the complainant might have given did not afford the appellant any defence. On the hearing of this appeal this Court was informed by counsel for the appellant that, because any consent the complainant might have given was not a defence to the offence charged in the first count in the indictment, there was no appeal against the appellant's conviction on that count. However, counsel informed the Court, the appellant was maintaining an appeal against his conviction on all the other counts in the indictment. 86 The three charges of inciting a person above the age of sixteen years to commit an act of indecency were based on s 61N(2) of the Crimes Act. Since 1 July 1995 s 61N(2) of the Crimes Act has provided, so far as is relevant, that a person who incites another person of the age of sixteen years or above to an act of indecency with or towards him is liable to imprisonment for eighteen months. Since 1 July 1995 s 61N(1) has provided for a similar offence where the person incited to commit an act of indecency is under the age of sixteen years. 87 However, prior to 1 July 1995 s 61N, so far as is relevant, created a single offence of inciting a person under the age of sixteen years to commit an act of indecency with or towards the offender. On this appeal it was conceded by the Crown that the period within which it was alleged that the offence charged in count 8 in the indictment had been committed commenced before 1 July 1995 and the Crown had not established that the offence had been committed on or after 1 July 1995 and consequently the appeal against the appellant's conviction on count 8 had to be allowed. On the other hand, the offences charged in counts 10 and 12 in the indictment were alleged to have been committed within periods commencing after 1 July 1995 and the convictions on those counts were not open to the same objection as the conviction on count 8.

Grounds of Appeal against Conviction "1. The verdicts of the jury on Counts 2,3,4,5,6,7,9, and 11 are unreasonable, and cannot be supported, having regard to the evidence. 2. The learned judge failed adequately to refer to the relevant evidence in directing the jury on the issue of consent as it bore upon the aforesaid counts. 3. The learned judge wrongly directed, and omitted to direct, the jury on the issue of consent. 4. The convictions on counts 8, 10 were unsupported by evidence, and neither they nor count 12 can stand if any of the foregoing grounds are made good". 88 I will deal with these grounds of appeal in turn.

Ground 1 89 At the trial it was part of the defence case that the appellant had not done any of the acts which the Crown alleged constituted indecent assaults on the complainant, with the possible exception of the act which the Crown alleged constituted the indecent assault charged in count 11. 90 The Crown alleged that all of the indecent assaults, apart from the indecent assault charged in count 11, had been committed no later than the end of April 1996. The indecent assault charged in count 11 was alleged to have been committed at some time within the period from 1 July 1996 to 31 December 1996. 91 The appellant gave evidence at the trial that before he went to America in September 1996 nothing of a sexual nature had ever occurred between the appellant and the complainant and that it was only after the appellant had returned from America in late 1996 that, for the first time, sexual activity had occurred between them. 92 Although it was part of the defence case at the trial that the appellant had not done the acts which the Crown alleged had occurred and had constituted indecent assaults, it was not submitted on this appeal that it had not been open to the jury to be satisfied beyond reasonable doubt that the appellant had in fact done all of those acts. What was submitted on this appeal was that it was not open to the jury to be satisfied beyond reasonable doubt that the complainant had not consented to the doing of those acts by the appellant. 93 An ingredient of the offence of indecent assault under s 61M of the Crimes Act is, of course, that the offender assaulted the complainant. On a charge of indecent assault it is necessary, unless the complainant is under the age of sixteen years and s 77 of the Crimes Act applies, for the Crown to prove that the complainant did not consent to the act on the part of the offender alleged to constitute the indecent assault R v Bonora (1994) 35 NSWLR 74. Accordingly, in the present case it was necessary for the Crown to prove beyond reasonable doubt on all of counts 2-7, 9 and 11 that the complainant did not consent to the act of the appellant alleged to constitute the indecent assault. 94 In his submissions counsel for the appellant referred to the complainant's evidence about the commission of each of the alleged offences of indecent assault and submitted that at the close of the complainant's evidence in chief there was no evidence on any charge of an absence of consent on the part of the complainant but only evidence of a reluctance or an absence of desire on the part of the complainant. It was pointed out by counsel that a consent given reluctantly is nevertheless a consent. 95 Counsel for the appellant referred to the form of a question the complainant had been asked a number of times in his examination in chief, the answers to which were relied on by the Crown as establishing absence of consent. In the examination in chief of the complainant, after the complainant had given evidence of each instance of sexual activity between himself and the appellant, the Crown prosecutor had usually asked the complainant a question in the form of whether the complainant had "wanted" the sexual activity to happen and on each occasion the complainant had answered in the negative. 96 It was submitted by counsel for the appellant that the question the complainant had been asked, whether he had wanted the particular sexual activity to happen, was not an apt question to elicit evidence of an absence of consent. Such a question confused the concept of absence of consent with the concept of absence of desire. 97 It was submitted by counsel for the appellant that other evidence given after the close of the complainant's examination in chief strengthened the submission that it had not been open to the jury to be satisfied beyond reasonable doubt that the complainant had not consented to each instance of sexual activity. 98 The principles to be applied by a Court of Criminal Appeal in determining whether a verdict of guilty by a jury is unreasonable or cannot be supported having regard to the evidence have been authoritatively stated by the High Court in M v The Queen (1994) 181 CLR 487, Jones v The Queen (1997) 191 CLR 439 and MFA v The Queen (2002) 213 CLR 606. See also R v Habib [2005] NSWCCA 223. The question to be determined is whether it was open to the jury to be satisfied of the appellant's guilt, applying the criminal standard of proof, acting reasonably and taking into account the whole of the evidence. 99 Having conducted my own independent assessment of the whole of the evidence, I have concluded that it was open to the jury, acting reasonably and taking into account the whole of the evidence, to be satisfied beyond reasonable doubt that the complainant had not consented to any of the indecent assaults alleged in counts 2-7, 9 and 11 and that, consequently, it was open to the jury to return verdicts of guilty on those counts. 100 I consider that it would have been open to the jury to accept inter alia the following evidence by the complainant which was relevant to the issue of whether he had consented to the appellant's acts. 101 The complainant first became acquainted with the appellant, when he was only about ten years old. The appellant was the professional golfer at the local golf course. The complainant loved playing golf and idolised the appellant. He continued to idolise the appellant throughout the periods in which the assaults occurred. 102 When the appellant first kissed the complainant, the complainant was shocked and jumped up and the appellant apologised for what he had done. 103 The first indecent assault charged occurred when the complainant was fifteen years old and completely sexually naïve. The complainant described himself as "uncomfortable" and "sort of frozen". 104 While the appellant and the complainant were in Norfolk Island in November 1993 the appellant, at least to the complainant's perception, attempted to commit suicide as a result of his feelings for the complainant and this had a powerful effect on an immature boy of fifteen. 105 At the Royal Pines Resort in Queensland in January 1994 the complainant was "very, very uncomfortable" with the sexual activity and told the appellant that he did not want it to happen. 106 In early 1994, when the complainant spoke to his mother about the appellant's conduct, the complainant was severely emotionally distressed. The complainant's evidence on this matter was corroborated by his mother's evidence. 107 When the complainant resumed playing golf after a gap of two to three months, the complainant told the appellant that all he wanted to do was play golf and that he did not want any sexual activity to happen. The appellant promised the complainant that nothing of a sexual nature would happen. 108 After the complainant discovered the photographs the appellant had taken of him when his penis was erect, the complainant grabbed the photographs and destroyed them. 109 It would have been open to the jury to be satisfied that the appellant's conduct towards the complainant, in the context of the complainant's general idolising of the appellant as a professional golfer, produced in the complainant a state of confusion and powerlessness, manifested, for example, in the almost incoherent evidence given by the complainant which I quoted earlier in this judgment (after the complainant's evidence about the third count in the indictment). 110 In June 1996 when the appellant started sucking the complainant's penis the complainant was "just frozen. I didn't know what to do and I just remember thinking that I was in another country and I just wanted to go home". The complainant tried to push the appellant away. 111 Finally, during his apprenticeship, the complainant "snapped" and told his parents what had been happening. 112 I have already referred to the submission made by counsel for the appellant that a question in the terms of "did you want that to happen?" was not an apt question to elicit evidence of absence of consent and confused or conflated absence of consent with mere absence of desire. 113 In my opinion, the attempted distinction between a question in the terms "did you want that to happen?" and a question in the terms "did you consent to that happening?" is excessively refined and, as used in the taking of evidence in this trial, the question which was put to the complainant "did you want that to happen?" was understood as being substantially equivalent to a question "did you consent to that happening?" 114 I would infer that that was the understanding of counsel for the appellant at the trial, who, as I have indicated earlier in this judgment, asked the complainant successive questions early in his cross-examination of the complainant:- "You say, don't you, that any sexual activity between the two of you was without your consent" and "you did not want to become involved in any sexual activity?" Furthermore, counsel for the appellant at the trial did not at the conclusion of the Crown case make any application for any directed verdict on the grounds that there was no evidence of an absence of consent on the part of the complainant. 115 I also infer that it was the understanding of the Crown prosecutor at the trial who, without any objection by counsel for the appellant at the trial or the trial judge, submitted to the jury:- "And, in fact, you heard (the complainant) repeatedly say in his evidence in relation to each of these incidents, it was not what he wanted, it was not with his consent". 116 At the conclusion of the complainant's evidence in chief the complainant was asked whether he had "consented" to any of the sexual conduct he had described as having happened between the appellant and himself and the complainant replied, "no, never". 117 I would reject the first ground of appeal.

Grounds of Appeal 2 and 3 118 These grounds of appeal were dealt with together in the appellant's written submissions and I will deal with them together. 119 No objection was taken at the trial to any of the trial judge's directions about consent and hence leave under r 4 of the Criminal Appeal Rules is required to rely on these grounds of appeal. 120 The principal directions given by the trial judge in his summing-up on the subject of consent, which were quoted in the appellant's written submissions, were as follows:- "I also told you that in relation to certain counts in the indictment that it was necessary to prove beyond a reasonable doubt that the complainant did not consent to the acts that were involved. Just to make clear which counts it applies to, the need for proof of consent applies to counts 2, 3, 4, 5, 6, 7, 9 and 11. In relation to consent it is for the Crown to prove the lack of consent. The accused does not have to prove that the complainant consented, the Crown must prove beyond a reasonable doubt that he did not. The idea of consent involves the conscious and voluntary permission by the complainant to engage in the sexual act with the accused. It is something that can be given verbally or expressed by actions. Similarly, absence of consent does not have to be in words, it may be communicated in other ways. Consent which is obtained after persuasion is still consent, however, the law provides that a person who does not offer actual physical resistance to sexual intercourse or sexual misbehaviour, as alleged here, is not by reason only of that fact to be regarded as consenting to sexual intercourse. There may be, in other words, background external factors which bring about that situation. I also suggested to you that in relation to consent the Crown must prove beyond a reasonable doubt that the accused person knew that the complainant was not consenting. This is a subjective test, not an objective one. In other words, you have to be persuaded beyond a reasonable doubt that in the mind of the accused, as distinct from a reasonable third party, that he was aware that consent was not being given. The Crown asks you in this case to infer from facts the evidence particularly of (the complainant) that the accused must have known and indeed knew that he was a reluctant participant. In other words, that he was not consenting, that he was a victim in other words. The law also provides in relation to consent that if the accused person does not address his mind to whether the consent was there or not, that amounts to a lack of consent. In other words, if the accused's state of mind was such that he simply failed to consider whether or not the complainant was consenting at all and just went ahead with the act of sexual intercourse notwithstanding, that a risk that the complainant was not consenting would have been obvious to someone with the accused's mental capacity if he turned his mind to it". 121 Exception was taken to two passages in this part of the summing-up. The first of these passages is the passage reading:- "The Crown asks you in this case to infer from facts the evidence particularly of (the complainant) that the accused must have known and indeed knew that he was a reluctant participant. In other words, that he was not consenting, that he was a victim in other words". 122 It was submitted by counsel for the appellant that in this passage in the summing-up the trial judge had wrongly conflated the two notions of the accused being a reluctant participant and the accused not consenting. The accused could have been a reluctant participant and yet have consented, even if reluctantly, to the sexual activity charged. 123 I note that in this passage in the summing-up the trial judge was not giving the jury a direction but was repeating a submission which had been made by the Crown. I also note that in this passage the trial judge was dealing with the element of the offence of indecent assault that the offender knew that the complainant was not consenting and not with the element that the complainant was not consenting. 124 However, more fundamentally, even if in other contexts "reluctance" might not be inconsistent with the giving of consent, in the passage in the present summing-up the trial judge, having used the expression "reluctant participant," immediately went on to define what he meant by that expression - "in other words he was not consenting". The trial judge had already directed the jury that the Crown had to prove that the complainant had not consented, that consent involved conscious and voluntary permission by the complainant to the appellant to engage in the sexual act and that consent obtained after persuasion was still consent. 125 I would reject this first submission by counsel for the appellant. 126 The other passage in the part of the summing-up I have quoted to which exception was taken is the part reading:- "The law also provides in relation to consent that if the accused person does not address his mind to whether the consent was there or not, that amounts to a lack of consent". 127 It was submitted by counsel for the appellant, and it is clearly correct, that this passage, as recorded in the transcript of the summing-up, is erroneous and, indeed nonsensical. A failure by the accused to turn his mind to whether the complainant was consenting could not possibly amount to an absence of consent on the part of the complainant. 128 The immediately following passage in the summing-up, as punctuated in the transcript of the summing-up included in the appeal books, is not fully coherent. However, it seems clear to me that the comma which has been placed after the word "notwithstanding" and which I infer would have been placed there by a court reporter, should have been placed before that word. On this reading the passage beginning with the words "in other words" explains what his Honour meant in the passage to which objection was taken by counsel for the appellant. 129 In my opinion, the jury would have understood that the paragraph beginning with the words "the law also provides" was concerned with the element of the offence that the offender knew that the complainant was not consenting and was directing the jury that that element of the offence could be made out, even if the accused had not turned his mind to whether the complainant was consenting. Notwithstanding the way in which the first sentence in the paragraph is literally expressed, I do not consider that the jury would have understood it to mean, in its context, that a failure by the accused to turn his mind to whether the complainant had consented entailed a conclusion that there had been an absence of consent on the part of the complainant. The very illogicality of such reasoning would have militated against the jury understanding it in that way. As I have previously noted, no objection was taken by counsel for the appellant at the trial. 130 It was submitted that the jury had not been directed that the issue of consent had to be considered by them on each count in its context and the jury had not been told that they could decide the issue differently on different counts. However, the trial judge in his summing-up had summarised the evidence on each count individually and had not been asked by counsel for the appellant at the trial to go into any further detail. Elsewhere in the summing-up the trial judge had expressly told the jury that there were really twelve separate trials, that the jury had to consider the evidence relevant to each particular charge and make a particular finding in relation to each charge and that "you have to address your mind twelve times to each of the separate charges and determine whether each one has been made out or not". 131 I would reject grounds 2 and 3 in the appeal against conviction.

Ground 4 132 As previously stated, the Crown conceded that the appeal against the conviction on count 8 had to succeed. 133 With regard to the convictions on counts 10 and 12, it was submitted on behalf of the appellant that there was insufficient evidence from the complainant to enable the jury to be satisfied beyond reasonable doubt that the element of the offence charged, that the appellant had "incited" the complainant to commit an act of indecency, had been proved. It was not sufficient, it was contended, that the complainant had given evidence that the appellant had "encouraged" the complainant to masturbate the appellant (count 10) or had "asked" the complainant to masturbate the appellant (count 12). Evidence should have been given of what the appellant had done or said by way of encouraging or asking the complainant. 134 In my opinion, on the evidence given by the complainant, which was not objected to, that he had been asked or encouraged by the appellant to masturbate the appellant, particularly in the context of all of the evidence given by the complainant, it was open to the jury to be satisfied beyond reasonable doubt on each of counts 10 and 12 that the appellant had incited the complainant to commit an act of indecency.

135 A further submission was made by counsel for the appellant under this ground of appeal but as the submission depended on this Court upholding earlier grounds of appeal against conviction, it is unnecessary to deal with this further submission. 136 I would reject the fourth ground of appeal. 137 As I am of the opinion that all four grounds of appeal against conviction should be rejected, I consider that the appeal against conviction, apart from the appeal against the conviction on count 8, should be dismissed.

Grounds of Appeal Against Sentence 138 The grounds of appeal against sentence were as follows:- "1. The individual sentences were, and the total was, excessive. 2. The learned judge erred in imposing sentences conformably with the legislative regime current at the time of sentence but not of application to the offences because of their dates. 3. The learned judge failed to give effect to the finding, properly made, and expressly conceded by the Crown that there were "special circumstances" relative to the offender." 139 It is convenient to deal first with the specific grounds of appeal before dealing with ground 1.

Ground 2 140 It was submitted that all of the offences had been committed before 1 February 2003 and therefore the sentencing judge should have sentenced the appellant in accordance with the previous, and not the present, s 44 of the Crimes (Sentencing Procedure) Act. However, the sentencing judge had sentenced the appellant on counts 2-7, 9 and 11 in accordance with the present s 44 of the Act by first setting a non-parole period and then setting a balance of the term. 141 These submissions by counsel for the appellant are well founded and error did occur in the sentencing of the appellant. However, as the Chief Justice, with the concurrence of the other members of the Court, held in R v Cramp [2004] NSWCCA 264, this is an error which has occurred on a number of occasions since 1 February 2003 and "is a technical error of little or no practical significance" (par 39). The Chief Justice added that this Court should intervene to impose sentences in accordance with the correct legislative provision but, unless some other error is established, this Court should not otherwise intervene.

Ground 3 142 In his remarks on sentence Judge Phelan said that the Crown did not dispute that there were special circumstances justifying a proportionally longer than normal parole period. His Honour identified those circumstances as being that the sentences about to be imposed would be the appellant's first experience of prison and would be served on some form of protection. 143 It was submitted by counsel for the appellant that in the sentences which the sentencing judge had actually imposed his Honour had failed to give effect to his finding that there were special circumstances and that there should be a proportionally longer than normal parole period. 144 I do not consider that this submission should be upheld. It is not to the point that the sentences imposed on count 1 and counts 10 and 12 were fixed terms of imprisonment, without any non-parole period. What has to be considered is the total effect of the sentences imposed by the sentencing judge. The sentences imposed on counts 2-7, 9 and 11 were concurrent sentences each totalling five years with a non-parole period of three years, commencing one year after the commencement of the sentence imposed on count 1. Hence, the total effect of the sentences was that the appellant was sentenced to non-parole periods totalling four years and balances of terms or parole periods totalling two years. Accordingly, the total effect of the sentences was that the balances of the terms or parole periods exceeded one third of the total non-parole periods and effect was given by the sentencing judge to his finding about special circumstances. 145 I would reject this ground of appeal.

Ground 1 146 I do not consider that the fact that the appeal against conviction has succeeded on count 8 and the conviction and sentence on count 8 must be quashed should, of itself, produce the consequence that this Court should hold that the total sentences imposed on the appellant or any of the individual sentences passed on the other counts should be set aside. The sentence imposed on count 8 was made fully concurrent with the sentences imposed on counts 10 and 12 and fully concurrent with the first year of the sentences imposed on counts 2-7, 9 and 11. 147 In his remarks on sentence Judge Phelan noted that there had been a number of offences, that they were objectively serious and that there had been planning by the appellant, for example in taking the complainant to resorts. There had been an abuse of trust by the appellant but, as his Honour correctly noted, it was an element of most of the offences that the complainant had been under the authority of the appellant. The complainant's evidence and a Victim Impact Statement showed that the complainant had suffered serious emotional harm as a result of the appellant's conduct. 148 In his remarks on sentence Judge Phelan noted some of the subjective features of the appellant. He had been a professional golfer since 1979. He had no previous criminal record and there was no evidence that he had had a relationship of a similar sort with any other boy or youth. A pre-sentence report disclosed nothing remarkable about the appellant. At the time of being sentenced the appellant was in a heterosexual relationship. The sentencing judge appears to have accepted an opinion of a psychologist that the appellant was "not currently at significant risk of sexual re-offending, provided that sensible safeguards are observed". Judge Phelan noted that the appellant had suffered serious extra-curial punishment for his offending, including loss of his career as a professional golfer and the loss of his golfing business interests. 149 Ultimately, very little was put by counsel for the appellant in support of this ground of appeal. Having considered the objective facts of the offences and the subjective features of the appellant and the relevant provisions of the Crimes (Sentencing Procedure) Act, I consider that it has not been shown that the sentences imposed on the appellant were manifestly excessive. 150 In my opinion the following orders should be made.

1. Appeal against conviction on count 8 in the indictment allowed. Conviction and sentence on count 8 quashed. Verdict of acquittal on count 8.
2. Otherwise appeal against conviction dismissed.
3. Leave to appeal against sentence granted.

4. Appeal against sentence on counts 2-7, 9 and 11 allowed and the sentences imposed by the sentencing judge on those counts on 12 April 2005 quashed but only for the purpose of imposing sentences complying with s 44 of the Crimes (Sentencing Procedure) Act as in force at the time of the offences.

5. In lieu thereof on each of counts 2-7, 9 and 11 the appellant is sentenced to a term of imprisonment of five years with a non-parole period of three years commencing on 1 November 2005.

6. Otherwise appeal against sentence dismissed. 151 BUDDIN J: I agree with James J. 152 HALL J: I agree with James J.

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