Porter v The Queen [2024] ACTCA 9

Authorised report: 21 ACTLR 122

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY COURT OF APPEAL

Case Title: Porter v The Queen Citation: [2024] ACTCA 9 Hearing Date: 16 May 2023 Decision Date: 15 March 2024 Before: Mossop, Baker, and Bromwich JJ Decision: (1) Leave to appeal is granted. (2) The appeal is allowed. (3) The appellant is resentenced to a total effective sentence of 17 years’ imprisonment, made up of the following four individual sentences: (a) For the offence of using a child under 12 years of age to produce child exploitation material (CAN2020/11987), the appellant is convicted and sentenced to 3 years and 4 months’ imprisonment, commencing on 11 January 2033 and expiring on 10 May 2036. (b) For the offence of engaging in a sexual relationship with a child under special care (CAN2020/7714), the appellant is convicted and sentenced to 11 years, 10 months and 23 days’ imprisonment, commencing on 18 November 2021 and expiring on 10 October 2033. (c) For the offence of grooming a young person (CAN2020/13262), the appellant is convicted and sentenced to 1 year, 7 months and 6 days’ imprisonment, commencing on 12 September 2035 and expiring on 17 April 2037. (d) For the offence of possessing child exploitation material (CAN2020/11989), the appellant is convicted and sentenced to 2 years’ imprisonment, commencing on 18 November 2036 and expiring on 17 November 2038. (4) The overall non-parole period will be 11 years imprisonment, commencing on 18 November 2021 and expiring on 17 November 2032. Catchwords: APPEAL – CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – sentence – adequacy of reasons – unattributed copying of prosecution submissions in primary judgment – reasons read as a whole indicate that primary judge gave independent and impartial consideration to the evidence and issues – ground dismissed. APPEAL – CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – factual findings in relation to aggravating feature of offence – effect of credibility assessment of reliability of estimate - evidence unable to support estimate of number of occurrences of abuse – limited utility of calculation of precise number of occasions of sexual offending in respect of an offence of engaging in a sexual relationship with a child under special care – ground upheld – appellant resentenced. APPEAL – CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – manifest excess – limited utility of classifying offences within hypothetical range – importance of maximum penalty as yardstick – grooming offence - sentence manifestly excessive – appellant resentenced. Legislation Cited: Crimes (Appeal and Review) Act 2001 (NSW), pt 7 Crimes (Sentencing) Act 2005 (ACT), ss 7, 33(1)(a), 34A, 35A Crimes Act 1900 (ACT), ss 56, 64(1), 64(3), 65(1), 66(1)(b) Supreme Court Act 1933 (ACT), s 68C(2) Cases Cited: Adamson v The Queen [2015] VSCA 194; 47 VR 268 Alexandria Landfill Pty Ltd v Transport for NSW [2020] NSWCA 165; 103 NSWLR 479 Amaca Pty Ltd v Werfel [2020] SASCFC 125; 138 SASR 295 Beale v Government Insurance Office of NSW (1987) 48 NSWLR 430 Benn v R [2023] NSWCCA 24 Cojocaru v British Columbia Women's Hospital and Health Centre [2013] SCC 30; 2 SCR 357 DL v The Queen (2018) HCA 26; 266 CLR 1 DPP v DDJ (2009) VSCA 115; 22 VR 444 Garay v The Queen (No 3) [2023] ACTCA 2 Hawker v The Queen [2020] ACTCA 40 Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd (1983) 3 NSWLR 378 IFTC Broking Services Limited v Commissioner of Taxation [2010] FCAFC 22 Johnson v Johnson [2000] HCA 48; 201 CLR 488 Li v Attorney General for New South Wales (2019) NSWCA 95; 99 NSWLR 630 Liberato v The Queen [1985] HCA 66; 159 CLR 507 O'Brien v The Queen [2015] ACTCA 47; 19 ACTLR 244 R v Gommeson [2014] NSWCCA 159 R v Johnston [2020] ACTSC 46 R v Porter (No 2) [2022] ACTSC 50 R v Porter (No 3) [2022] ACTSC 236 R v Thomson; R v Houlton [2000] NSWCCA 309; 49 NSWLR 383 R v Toumo'ua [2017] ACTCA 9; 12 ACTLR 103 R v Verdins [2007] VSCA 102; 16 VR 240 Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 Stott v R [2021] ACTCA 18 Sun Alliance Insurance Ltd v Massoud [1989] VR 8 The Queen v Ruwhiu [2023] ACTCA 18 Tracey v The Queen [2020] ACTCA 51 Ultimate Vision Inventions Pty Ltd v Innovation and Science Australia [2023] FCAFC 23; 297 FCR 143 Wainohu v New South Wales [2011] HCA 24; 243 CLR 181 Whalan v Kogarah Municipal Council [2007] NSWCA 5 Texts Cited: Presentation Speech, Crimes Legislation Amendment Bill 2017 (No 2) (ACT) (Hansard, 30 November 2017, p 5388) Presentation Speech, Royal Commission Criminal Justice Legislation Amendment Bill 2020 (ACT) (Hansard, 2 July 2020, p 1472) Royal Commission into Institutional Responses to Child Sexual Abuse (Criminal Justice Report, 2017) Parties: Stephen Porter (Appellant) Director of Public Prosecutions (Respondent) Representation: Counsel T Game SC with R El-Choufani (Appellant) K McCann with C Diggins (Respondent) Solicitors Hugo Law Group (Appellant) ACT Director of Public Prosecutions (Respondent) File Number: ACTCA 48 of 2022 Decisions Under Appeal: Court/Tribunal: ACTSC Before: Loukas-Karlsson J Date of Decision: 21 March 2022 Case Title: R v Porter (No 2) Citation: [2022] ACTSC 50 Court File Number: SCC 40 of 2021 Court/Tribunal: ACTSC Before: Loukas-Karlsson J Date of Decision: 1 September 2022 Case Title: R v Porter (No 3) Citation: [2022] ACTSC 236 Court File Number: SCC 40 of 2021 THE COURT: Introduction

1. On 2 September 2021, the appellant, Mr Stephen Porter, pleaded guilty to the following four charges: (a) Count 1 (CAN2020/11987): using a child under 12 years of age to produce child exploitation material, contrary to s 64(1) of the Crimes Act 1900 (ACT). The maximum penalty for this offence is 15 years’ imprisonment, a fine of $240,000, or both. (b) Count 2 (CAN2020/7714): engaging in a sexual relationship with a child under special care, contrary to s 56(1) of the Crimes Act. The maximum penalty for this offence is 25 years’ imprisonment. (c) Count 3 (CAN2020/13262): grooming a young person, contrary to s 66(1)(b) of the Crimes Act. The maximum penalty for this offence is 7 years’ imprisonment. (d) Count 4 (CAN2020/11989): possessing child exploitation material contrary to s 65(1) of the Crimes Act. The maximum penalty for this offence is 7 years’ imprisonment, a fine of $112,000, or both.

2. The facts in respect of counts 1, 3 and 4 were agreed. However, there was a dispute between the prosecution and the appellant as to the facts giving rise to Count 2 (in particular, the frequency and nature of the sexual offending). Following a disputed facts hearing in relation to Count 2, the primary judge accepted the facts put forward by the prosecution concerning the number of occasions and the form of sexual abuse: Porter (No 2) [2022] ACTSC 50.

3. On 1 September 2022, the appellant was sentenced to a total effective sentence of 20 years’ imprisonment for the four offences, with a non-parole period of 12 years and 6 months’ imprisonment: R v Porter (No 3) [2022] ACTSC 236 at [318]. The individual sentences (after discounts for the appellant’s pleas of guilty) were as follows: (a) Count 2 (CC2020/7714): 13 years and 6 months’ imprisonment commencing on 18 November 2021 and expiring on 17 May 2035. (b) Count 1 (CC2020/11987): 3 years and 4 months’ imprisonment commencing on 18 August 2034 and expiring on 17 December 2037. (c) Count 3 (CC2020/13262): 3 years’ imprisonment commencing on 18 April 2037 and expiring on 17 April 2040. (d) Count 4 (CC2020/11989): 2 years’ imprisonment commencing on 18 November 2039 and expiring on 17 November 2041.

4. The appellant now appeals from these sentences on the following grounds: Ground 1: The primary judge’s reasons in respect of the disputed facts (Count 2) were inadequate, because the reasons were largely a “direct recitation” of the prosecution’s written submissions; Ground 2: It was “not reasonably open” to the primary judge to find beyond reasonable doubt that there had been 35 separate occasions of sexual activity in relation to Count 2 (the sexual relationship offence); and Ground 3: The sentence imposed for Count 3 (the grooming offence) is manifestly excessive or plainly unreasonable or unjust.

5. For the reasons set out below, the appeal is allowed. Ground 1 should be dismissed, but grounds 2 and 3 are established. The appeal is allowed and the appellant resentenced to a total effective sentence of 17 years’ imprisonment for the four offences, with a non-parole period of 11 years, made up of the following individual sentences: (a) Count 2 (CC2020/7714) – 11 years, 10 months and 23 days’ imprisonment, commencing on 18 November 2021 and expiring on 10 October 2033. (b) Count 1 (CC2020/11987) – 3 years and 4 months’ imprisonment, commencing on 11 January 2033 and expiring on 10 May 2036. (c) Count 3 (CC2020/13262) – 1 year, 7 months and 6 days’ imprisonment, commencing on 12 September 2035 and expiring on 17 April 2037. (d) Count 4 (CC2020/11989) – 2 years’ imprisonment, commencing on 18 November 2036 and expiring on 17 November 2038. The non-parole period will commence on 18 November 2021 and expire on 17 November 2032.

Background

The offending

6. The offending occurred between 2009 and 2020, while the appellant was engaged as a volunteer coach of Australian Rules Football (AFL) at the Belconnen Magpies Football Club and Ainslie Football Club. The appellant coached several teams of various age groups, and offered private coaching to select young players.

7. Each of the victims of the offending have been given pseudonyms. Count 1: Using a child under 12 years of age to produce child exploitation material

8. The offending which is the subject of Count 1 occurred between January 2009 and September 2011. The victim was Alexander Goodwin, who was between 9 years old and 12 years old during the relevant time period.

9. It was additionally agreed that the sentencing in relation to Count 1 would take into account an offence of using a child over 12 years of age to produce child exploitation material, contrary to s 64(3) of the Crimes Act, in relation to child exploitation material of Alexander Goodwin produced between September 2011 and November 2011, while Alexander was 12 to 13 years old.

10. Over the charged period, Alexander was attending the appellant’s house three to four times per week. While there, he and the appellant would participate in recreational activities such as swimming in the appellant’s swimming pool, kicking a football, playing darts or pool, and watching videos.

11. The appellant made several videos of Alexander while “playing with Nerf toy guns … dressing up as zombies and playing hide and seek games”. Alexander was often in his swimwear in these videos. Alexander was aware that these videos were being made.

12. The appellant also covertly recorded further videos of Alexander engaging in recreational activities at his house, including videos of Alexander in his swimwear, which focused on his buttocks and genital areas. Alexander was not aware that these videos were being made.

13. The appellant also placed a camera in a bedroom in his house, which covertly recorded Alexander removing his clothes and changing into swimwear. These videos included footage of Alexander’s naked body, including his buttocks and genitals. Alexander was not aware that these videos were being made.

Count 2: engaging in a sexual relationship with a child under special care

14. Count 2 relates to the appellant engaging in a sexual relationship with a child in special care, namely Wesley Mason, between 1 September 2015 and 31 September 2018 while Wesley was between 12 and 15 years old.

15. Count 2 was the subject of the disputed facts hearing. The appellant accepted that he sexually abused Wesley, but disputed the number of occasions that he sexually abused Wesley, and also the number of occasions that penile-anal intercourse was engaged in. The prosecution contended that the appellant had sexually abused Wesley on 35 to 45 separate occasions, and that anal intercourse occurred on every occasion except the first occasion. The appellant’s case was that he sexually abused Wesley on no more than 15 occasions, and that anal intercourse occurred on two occasions.

16. Following the disputed facts hearing, the sentencing judge delivered a judgment in which she found that the appellant had sexually abused Wesley on at least 35 separate occasions and that anal intercourse had occurred on each occasion except the first occasion. These findings are the subject of appeal grounds 1 and 2. The evidence in relation to Count 2 is set out in more detail below in considering these grounds of appeal.

Count 3: Grooming a young person

17. The offending which is the subject of Count 3 relates to the grooming of Riley Priestley during 2020. In March 2020, the appellant offered private coaching sessions to Riley, which his parents accepted. The private sessions initially occurred once per week for one hour, subsequently increasing to twice per week for around two hours.

18. The appellant informed Riley’s parents that they could not tell anyone about the coaching because of COVID-19 restrictions. The training commenced on the main oval of the football grounds at which they trained, but subsequently moved to a more discreet oval that was not visible from the road.

19. Over time, the appellant became friendlier with Riley and their relationship became more personal. They often had personal conversations and the appellant would send Riley messages via Heja (a messaging app).

20. The appellant invited Riley to his house. However, Riley’s parents declined these invitations. In June 2020, Riley attended the appellant’s house with other members of the under 14’s football team and engaged in recreational activities.

21. Over a number of months, the appellant sent messages to a friend which “demonstrated that the appellant was interested in Riley Priestley and was seeking to utilise his time with Riley to groom him for potential sexual conduct”. These messages included comparisons of his sessions with Riley with his sessions with the victims of Counts 1 and 2; referring to himself as “falling so hard for” Riley; descriptions of Riley’s “butt”; describing their relationship as “mov[ing] beyond that coach/player thing”; and the statement “who the hell knows where this one ends up but right now its baby steps.”

22. In November 2020 (after the appellant’s arrest for other offending), Riley’s father identified an image that the appellant had sent to this friend as being an image of Riley that was taken at a triathlon in 2018 or 2019. Riley’s parents had not provided the photograph to the appellant. Count 4: Possessing child exploitation material

23. Count 4 relates to the possession of child exploitation material, consisting of over 1,500 videos and images depicting male children (including infant, prepubescent, and postpubescent children) engaging in forced and unforced sexual activities with adult males and other male children.

24. This material was contained on several devices, including a phone belonging to the appellant which contained non-sexual images and videos of infants and male children. Wesley Mason was depicted in one of these images. One video depicted a child who was later identified as the child of a family whom the appellant had visited in Queensland on two occasions with a friend. That video was of the child getting changed, and depicted the child’s genitals.

Ground 1: Inadequate reasons

Introduction

25. The appellant submits that the primary judge’s reasons for her decision in relation to the disputed facts (R v Porter (No 2)) were inadequate, as her Honour’s conclusions largely consisted of “a direct recitation of the Crown written submissions”.

26. The Director of Public Prosecutions (“the Director”), whilst acknowledging that that there had been “extensive copying” in the primary judge’s reasons, contended that the reasons were nonetheless adequate – in particular, because the primary judge had expressly addressed the appellant’s submissions, and had expressed her final conclusions in her own words.

27. It is convenient to first consider the authorities where it has been alleged that a decision maker’s reasons were inadequate by reason of undue copying of a party’s submissions. We will then briefly summarise the evidence on the disputed facts hearing, before turning to assess the adequacy of the reasons that were provided by the primary judge in the disputed facts judgment.

Judicial copying of submissions Relevant authorities

28. As both parties submitted, the starting point for consideration of the first ground of appeal is with the duty of a judge to provide reasons for their decision.

29. Although there is no statutory requirement for a judge to give reasons for a decision on sentence (cf s 68C(2) of the Supreme Court Act 1933 (ACT)), the common law requires that such reasons be given. The purpose of this requirement is so that justice may be seen to be done (both by the parties and the wider public), and to enable an appellate court to ascertain the reasoning on which the decision is based for the purpose of determining any appeal against the decision: Wainohu v New South Wales [2011] HCA 24; 243 CLR 181 at [54] – [58]; R v Thomson; R v Houlton [2000] NSWCCA 309; 49 NSWLR 383 at [42].

30. The extent of the reasons which will be required varies “according to the nature of the jurisdiction which the court is exercising and the particular matter the subject of the decision”: DL at 12 [32]. The reasons given do not need to be elaborate: IFTC Broking Services Limited v Commissioner of Taxation [2010] FCAFC 22 at [4] quoting Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd (1983) 3 NSWLR 378 at 386; Beale v Government Insurance Office of NSW (1987) 48 NSWLR 430 at 443.

31. However, it is necessary for the reasons to demonstrate that the judge “engage[d] with the case presented”, “expose[d] his or her reasoning on points critical to the contest between the parties”, “[made] findings as to material questions of fact”, and “explain[ed] why evidence or material has been rejected”: Amaca Pty Ltd v Werfel [2020] SASCFC 125; 138 SASR 295 at [20], citing inter alia, Whalan v Kogarah Municipal Council [2007] NSWCA 5 at [40], DL v The Queen [2018] HCA 26; 266 CLR 1 at [130] – [131], Beale at 431 and Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 257 – 258.

32. In the present case, the appellant did not contend that the primary judge had failed to address material evidence or submissions. Rather, he submitted that the primary judge’s reasons were deficient because they contained substantial extracts from the prosecutor’s submissions, without attribution. A complaint of this nature raises concerns of a different complexion to cases in which it is alleged that the reasons are deficient because relevant evidence or submissions were not addressed by the primary judge.

33. A fundamental concern that is raised when there is extensive copying of a party’s submissions in a judge’s reasons for decision is with the integrity of the judicial process. Such a practice raises the spectre that the judge has not independently considered the evidence or reached their own independent conclusions of fact or law.

34. For this reason, courts in both Australia and overseas disapprove of reasons which simply adopt a party’s submissions as the Court’s judgment: see, for example, Amaca at [16] (“as a general rule, it is most unwise to engage in wholesale copying of submissions without attribution”); Ultimate Vision Inventions Pty Ltd v Innovation and Science Australia [2023] FCAFC 23; 297 FCR 143 at [6] (“Irrespective of the legal consequences of such copying, it should not happen. It is damaging to public confidence in the Tribunal”); and Cojocaru v British Columbia Women’s Hospital and Health Centre [2013] SCC 30; 2 SCR 357 at [35] (“The concern about copying in the judicial context is not that the judge is taking credit for someone else’s prose, but rather that it may be evidence that the reasons for judgment do not reflect the judge’s thinking … Avoiding this impression is a good reason for discouraging extensive copying”).

The disputed facts hearing

52. The disputed facts hearing was heard over three days, on 28, 29 and 30 October 2021. The evidence given in that hearing was as follows.

53. Wesley Mason (who will be referred to as “the victim” in respect of appeal grounds 1 and 2) gave evidence by way of an Evidence In Chief Interview (“EICI”) and oral evidence in chief. He explained that in or around August 2014, the appellant offered him private coaching. This coaching commenced by October 2014. The first instance of offending occurred after approximately a year of private coaching.

54. The victim gave evidence that the first instance of offending involved oral sex and the use of a dildo. He gave evidence that the second instance of the offending, which occurred “approximately a week later”, involved penile-anal penetration by the appellant performed on the victim. The victim said that after this occasion, engaging in sexual activity following training became “a thing I just did” and that penile-anal penetration by the appellant was the “new normal”.

55. The victim gave evidence that the appellant would also regularly attend his house for dinner and would stay overnight in his room afterward. He said that sexual activity would occur on these occasions, as well as at the appellant’s house following training sessions. He explained that his trundle bed (on which he would sleep, while the offender took the main bed in his room) had broken during sexual intercourse on one occasion.

56. The victim also gave evidence that during sexual activity the appellant would never wear a condom; that the appellant would ejaculate on him or in a tissue; on one occasion, a few years after the offending began, the appellant ejaculated inside him; and that he anally penetrated the appellant on approximately three occasions.

57. When asked to “guesstimate” the frequency of the offending, the victim estimated that sexual activity occurred “over thirty-five [times] … probably about forty-five times”. The victim said that the offending ended in or around 2018, after he rebuffed the appellant twice.

58. Statements of the victim’s mother and stepfather were tendered without objection. Neither were required for cross-examination.

59. These statements included evidence as to the frequency with which the appellant came to visit. The victim’s mother and stepfather also recalled the victim’s trundle bed breaking, although they differed in their recollections as to when this occurred. The victim’s mother stated that the victim did not disclose how this occurred at the time, but later told her that the offending caused the bed to break.

60. The appellant gave evidence that penile-anal intercourse occurred only twice, once in January 2017 when he anally penetrated the victim and again one to two weeks later when the victim anally penetrated him. The appellant denied ever ejaculating inside the victim or having penile-anal intercourse at the victim’s house.

The primary judge’s decision

65. In Porter (No 2), the primary judge commenced by setting out the issues in dispute, before summarising the victim’s evidence, the unchallenged statements of his mother and his stepfather and the evidence of the appellant: Porter (No 2) at [1] – [10] (summary of issues); [11] – [71] (the victim’s evidence); [72] – [84] (evidence of the victim’s mother) and [85] – [98] (evidence of the victim’s stepfather); and [99] – [167] (evidence of the appellant and the appellant’s record of interview). The summary of the evidence in the proceedings was comprehensive. It was not drawn from the submissions of either party. The primary judge did not indicate or foreshadow any of her findings as to witness credibility in this part of the judgment, other than noting that the appellant’s denials in his record of interview were in “contradistinction” to the evidence given by the appellant in Court: Porter (No 2) at [166].

66. Following the summary of the evidence, the primary judge then briefly, but accurately, set out the legal principles to be applied to the determination of disputed facts before summarising the submissions made on behalf of the appellant. It is important to note that the primary judge’s summary of the submissions was not limited to recounting the submissions made on behalf of the appellant. Rather, at various points in this summary, the primary judge interposed her own responses to the submissions made by the appellant’s counsel. For example: (a) After recounting the appellant’s counsel’s submission that “whether the door of the [victim’s’] bedroom was open or closed, it is highly likely that people walking up and down the hallway could be heard and, by necessary inference, that noises come from the bedroom would be heard”, the primary judge noted that the victim’s mother’s statement contained the following: “we would ask [for the] door to stay open but I can recall times when [the] door was closed”: Porter (No 2) at [177]. (b) After noting the victim’s evidence concerning whether sexual offending occurred after the NRL Grand final (namely, that whilst he could not recall any sexual contact, “that’s not to say it didn’t happen”) and the appellant’s counsel’s submission that “in a ‘word-on-word’ contest about the number and frequency of sexual encounters, ‘matters of that ilk’ point in favour of the appellant’s account, or at least, makes it difficult to reject his account and to accept the [victim’s] account beyond a reasonable doubt”, the primary judge responded (at [189]): I disagree. In my view, it does not logically follow that the Court would reject the [victim’s] overall account in light of that particular answer. (c) After recounting the appellant’s submission that the appellant “had a better and more detailed recollection than the [victim]”, the primary judge responded (at [225]): I do not agree. I observed both the [victim] and the offender carefully in giving evidence. In my view, that submission of the offender is not borne out. (d) The primary judge noted the appellant’s submission that the circumstances in which the relationship ended (that is, where the appellant and the victim’s family remained good friends) suggested that the “relationship was not based purely upon the satisfaction of the offender’s wants or needs”. Her Honour responded that this submission did “not greatly assist the Court in determining the disputed facts”: Porter (No 2) at [226]. (e) In response to the appellant’s submission that the appellant’s account of desisting with penile-anal intercourse because the victim did not enjoy it was to be preferred to the victim’s evidence that penile-anal intercourse continued until he rejected the appellant’s advances in 2018, the primary judge stated “[t]his submission, in my view, ignores the change in age of the [victim]”: Porter (No 2) at [220]. (f) The primary judge noted the submission that a WhatsApp exchange between the appellant and his friend in which the appellant described the victim as being “1 in 100 million” should be viewed as a reference to the appellant’s sexual inexperience with children and close relationship with the victim, and that this tended to “add credence to the offender’s evidence”. The primary judge responded, “I am not persuaded that it adds any credence to the offender’s evidence”: Porter (No 2) at [233].

Determination

78. It is clear from the authorities outlined above that whilst the unattributed replication of a party’s submissions in a judicial decision is to be strongly discouraged, such copying does not, without more, vitiate a judgment.

79. The vice in the copying of a party’s submissions in a judgment is not in plagiarism or the appropriation of a party’s intellectual property. Accordingly, determining whether a judgment has been vitiated by unattributed copying does not involve an assessment of the proportion of original material contained in the judge’s reasons. Rather, the question to be asked is whether the copying is such that it should be inferred that the primary judge has not made an independent decision on the whole of the evidence and the law.

80. As the appellant submitted, some of the features of a judge’s reasons which may be relevant to determining whether the reasons indicate that the judge made an independent and impartial decision will include: (a) The nature of the proceedings being determined (for example, whether the proceedings are judicial or administrative, criminal or civil, final or interlocutory); (b) The extent of the reproduction, including both its volume and its nature (for example, whether the material copied is of uncontested evidence or established authority, or is of the party’s arguments and conclusions); (c) Whether the adoption of a party’s submissions was accompanied by an independent analysis of the evidence and/or the legal principles to be applied; (d) Whether the judgment refers to the submissions of the unsuccessful party, and whether any aspects of the unsuccessful party’s submissions were accepted; and (e) Whether the judge edited parts of the submissions which had been copied.

81. Whether or not the copied material is attributed to its author is also relevant to this assessment. There is a qualitative difference between a judgment which cites portions (even extensive portions) of a party’s submissions, and then indicates agreement with those submissions, and a judgment which adopts the submissions of a party as the Court’s reasons without acknowledging the source of the material copied.

82. In particular, where a judge openly expresses agreement with the submissions of a party, there is a transparency in the reasoning that is entirely absent where the judge simply adopts a party’s submission as their own reasoning. As Mr Game SC submitted on behalf of the appellant, where the copied material is not attributed, there is a “concealment” of the process by which the judgment was created. For this reason, where the copied portion of the judgment is not attributed, particularly careful attention will need to be given to the assessment of whether the judge has in fact made an independent decision on the whole of the evidence and the law.

83. As can be seen from Annexure A, a considerable portion of the primary judge’s conclusions in the disputed facts judgment were copied from the prosecution’s written submissions, without attribution. Nonetheless, as the authorities cited above make clear, where there are other sufficient indications in the judgment that the primary judge actively engaged with the evidence and the submissions of both parties, the judgment will not be set aside by reason of the fact of copying alone. The judgment will only be vitiated where the reasons are such that it should be inferred that they are not the product of the active application of an independent and impartial mind.

Ground 2: factual findings in relation to number of occasions of sexual activity

The parties’ submissions

91. By his plea of guilty to Count 2, the appellant admitted that he was an adult, who had engaged in a “relationship” with a child, and that the “relationship” involved more than one sexual act. As noted above, in his evidence, the appellant further admitted that there had been 15 occasions of sexual activity, but denied that sexual activity had occurred on any further occasions.

92. The prosecution sought to establish, as a matter of aggravation, that the appellant had sexually abused the victim on 35 to 45 occasions. As noted above, the primary judge found that the sexual abuse had occurred on “at least” 35 occasions: Porter (No 2) at [252]. Her Honour took this finding into account when sentencing the appellant: Porter (No 3) at [29].

93. In this ground of appeal, the appellant submitted that it was not “reasonably open” on the evidence for the primary judge to find beyond reasonable doubt that there were at least 35 separate occasions of sexual activity. He submitted the primary judge could not be so satisfied because of the “inevitable imprecision” of the victim’s evidence and the lack of independent evidentiary support for the victim’s “guesstimate”.

94. In response, counsel for the Director contended that a finding that sexual activity occurred “at least 35 times” was both open and “entirely correct”, in light of the circumstances of the sexual relationship, the context for the victim’s guesstimate, and the evidence of the victim, his mother and stepfather, and the appellant.

Standard of review

95. In Stott v R [2021] ACTCA 18 at [27] – [40], this Court considered, but did not resolve, the standard of review to be applied to a challenge to a factual finding on an appeal against sentence, specifically, whether it is sufficient for an appellant to establish that there has been a factual error in the sense that the appellate court considers that a different factual finding should have been made, or whether it is necessary for the appellant to establish that the factual finding "was such that it was not reasonably open to the sentencing judge to make that finding" before the appellate court should intervene. It is also unnecessary to resolve that issue in the present appeal. It is sufficient for the Court to determine the appeal ground as framed, which pleads that the impugned finding was “not open”.

Determination

96. Consideration of this ground of appeal requires close attention to be given to the evidence in the disputed facts hearing.

97. In the EICI, investigating police asked the victim whether he recalled the last time that he was sexually abused. The victim responded “Um no, I can’t remember the last time it happened”. He then continued: I can’t remember how many times it happened, and I can’t remember the last time it happened. I remember the first time and that second and the time he um (indistinct) but, yeah. Yeah that was – that was about it.

98. Later in the EICI, investigating police asked the appellant to “guesstimate” how many times he had been sexually abused by the appellant: Q764: … If you were to guess – guesstimate – how many times it occurred over that three year period, do you reckon you could? A: Oh, I said – I said before it would have to be over thirty-five but now I’m thinking it would have to be more, probably about maybe forty-five times. It happened – it happened a lot.

99. In cross-examination, the victim explained that he arrived at this “guesstimate” by “thinking about how old I was and how many years I knew him and how many years after I first knew him that the offending started taking place, and also the amount of opportunities he had to abuse me”.

100. As noted above, the appellant gave evidence that there had been sexual intercourse on much fewer occasions, but still on a substantial number of occasions that was not inherently inconsistent with the victim’s evidence that it happened a lot. The appellant’s evidence was that, in total, he engaged in sexual activity with the victim on 14 or 15 occasions.

101. The primary judge rejected the appellant’s evidence as to the frequency of the sexual intercourse, and held that the victim’s evidence was “compelling” and “truthful”: Porter (No 2) at [260]. It was well open to the primary judge to make both findings. Indeed, on our review of the evidence, we would make the same findings.

102. However, a conclusion that the victim was a credible witness was not determinative of whether the victim’s estimate of sexual intercourse having occurred on more than 35 occasions should be accepted. It was also necessary for the primary judge to assess the reliability of the victim’s estimation. This required an analysis of the victim’s evidence as to the specific occasions of sexual offending that he could recall, as well as the victim’s broader recall of the appellant’s opportunities to offend against him.

103. The victim gave evidence of the following nine specific incidents of sexual abuse: (a) The first occasion, when the victim was sexually assaulted by the appellant in late November or early December 2015 at the appellant's house after a training session. This occasion involved the appellant performing fellatio on the victim, making the victim perform fellatio on the appellant, and penetration of the victim’s anus with a dildo. (b) The second sexual assault, which occurred about a week after the first. This incident involved anal intercourse. The victim recalled that this incident occurred prior to 6 January 2016, but accepted that it may have occurred after 31 December 2015. (c) The third sexual assault, which occurred approximately 9 days after the second sexual assault and also involved anal intercourse. On this occasion, the appellant encouraged the victim to penetrate him. (d) Later the same night, the appellant had dinner at the victim's house and stayed over at the victim’s house. Sexual intercourse occurred again in which the appellant anally penetrated the victim. (e) An occasion on 6 January 2016, when the victim trained and went to play slot cars with the appellant and another person. The victim recalled that the appellant sexually assaulted him in his (the victim’s) bedroom on this day. (f) In April 2017, when the victim turned 14, he attended the appellant's house for his birthday, and they had sexual intercourse involving a plastic vagina which the appellant gifted to him, as well as anal intercourse. The appellant showed the victim his collection of sex toys. (g) At some point after April 2017, when the victim was 14 or 15 years old, the appellant anally penetrated the victim at the victim's house and ejaculated inside him. (h) Further to (c) above, an additional two occasions when the victim was encouraged to anally penetrate the appellant (another occasion at the appellant's house and once at his house).

Resentence for Count 2

119. In resentencing the appellant for Count 2, we have assessed the nature and circumstances of the offending on the basis set out above, namely, that whilst the appellant sexually offended against the victim on considerably more than 15 occasions, it is not possible to conclude beyond reasonable doubt that the offending occurred on 35 or more occasions.

120. However, the offending remains grave in nature. The appellant preyed upon the victim to satisfy his own sexual desires over an extended period of time. The appellant inveigled himself into the victim’s family, becoming not only his private coach, but also a trusted family friend. The appellant was considerably older than the victim, and had significant power over him by reason of his position as the victim’s private coach.

121. The offending involved repeated anal penetration, both with objects and penile-anal penetration. The appellant did not use a condom, risking the transmission of a sexually transmitted disease. The offending occurred in the victim’s home on numerous occasions.

122. Although we cannot reach a conclusion beyond reasonable doubt as to exactly how many occasions the appellant sexually assaulted the victim, it cannot be doubted that the offending was persistent, sustained and on any view, numerically significant in the sense of not being infrequent or episodic. The offending occurred over a lengthy period, from when the victim was 12 years old to 15 years old.

123. As the primary judge noted, the observations of the Victorian Court of Appeal in DPP v DDJ [2009] VSCA 115; 22 VR 444 at [32] were particularly apposite to the offending: … it is the persistence of the sexual relationship over time which is at the heart of the offence. The repetition of the sexual abuse is likely to heighten the victim’s fear that the abuse will occur again, and to increase the damage which he or she suffers. Equally the repetition is likely to make the offender progressively more aware of the effect the abuse is having on the victim. In each of these respects, culpability is heightened.

124. As the victim impact statements made clear, the appellant’s offending has had a “significant and long-lasting impact”, both upon the victim and his wider family: Porter (No 3) at [91]. The sentence to be imposed must recognise the harm done to the victim and to the broader community: s 7 of the Crimes (Sentencing) Act 2005 (ACT).

125. We have proceeded on the basis of the primary judge’s unchallenged findings as to the appellant’s subjective case, namely: (i) The appellant’s good character should be given no weight because the “offender’s good character and reputation as a coach” enabled him to gain his position as the victim’s personal coach, which facilitated the offending: Porter (No 3) at [212] – [213], referring to s 34A of the Crimes (Sentencing) Act. (ii) The appellant’s prospects of rehabilitation are “guarded”: Porter (No 3) at [302]. (iii) The adverse media coverage concerning the charges was not such as to justify a reduction of the sentence on the basis of extra curial punishment: Porter (No 3) at [273] – [280]. (iv) The appellant’s depression “may mean that a given sentence will weigh more heavily on the [appellant] than it would on a person in normal health” and may create a “serious risk of imprisonment having a significant adverse effect on the [appellant’s] mental health”: see Porter (No 3) at [188], citing R v Verdins [2007] VSCA 102; 16 VR 240 at [32]. (v) The appellant’s moral culpability may be reduced “to a limited extent” by reason of his paedophilic disorder, but it was “not significantly ameliorated”. The disorder did not ameliorate the need for general deterrence, but heightens the importance of specific deterrence (noting, in this respect, the treatment sought by the offender): Porter (No 3) at [193] – [196]. (vi) The admissions made by the appellant during the execution of a search warrant were not such as to justify a discount under s 35A of the Crimes (Sentencing) Act: Porter (No 3) at [252].

Ground 3: Manifest excess (Count 3)

Introduction

131. The appellant submits that the sentence imposed in respect of Count 3, the grooming of Riley Priestley contrary to s 66(1)(b) of the Crimes Act, was manifestly excessive in all of the circumstances. The maximum penalty for an offence contrary to s 66(1)(b) is 7 years’ imprisonment.

132. The primary judge imposed a sentence of 3 years’ imprisonment for Count 3. Prior to the 20% discount for the offender’s early guilty plea, the notional starting point for this sentence was 3 years and 9 months’ imprisonment. The sentence imposed for Count 3 was substantially accumulated on Count 1, increasing the overall sentence by 2 years and 4 months.

133. The principles in relation to manifest excess are well established, and were summarised by this Court in Hawker v The Queen [2020] ACTCA 40 at [14]: The principles in relation to assessing whether a sentence is manifestly excessive are well established. Appellate intervention is not justified simply because an appellate court may have a different view as to the appropriate sentence than the sentencing judge: Lowndes v The Queen [1999] HCA 29; 195 CLR 665 at [15]; Markarian v The Queen [2005] HCA 25; 228 CLR 357 at [28], or where the result arrived at below is markedly different from other sentences that have been imposed in other cases: Wong v The Queen [2001] HCA 64; 207 CLR 584 (Wong) at [58]; Hili v The Queen; Jones v The Queen [2010] HCA 45; 242 CLR 520 (Hili) at [58]. Rather, the appellant must demonstrate that the sentence is such that it may be inferred that there was some misapplication of principle in the sentencing of the appellant, even though when and how is not apparent from the statement of the sentencing judge’s reasons: Wong at [58]; Hili at [58]–[59], [75]–[76]. See also Tracey v The Queen [2020] ACTCA 51 at [37] – [38].

The nature and circumstances of the offending

134. The primary judge correctly recognised that “references to low, mid-range and high-range are unlikely to be helpful in this jurisdiction”, and that “it is preferable for a sentencing judge to confine themselves to identifying features of the case that inform the objective seriousness of that case”: Porter (No 3), citing R v Toumo’ua [2017] ACTCA 9; 12 ACTLR 103 at [24]. As the appellant submitted, that observation has added force in respect of a “protean” offence such as grooming.

135. Despite this observation, the primary judge then went on to assess the objective seriousness of the offending in respect of count 3 as “above mid-range”. Her Honour explained that this was necessary because of the structure of the offender’s submissions. It is unclear why the structure of the offender’s submissions rendered it necessary to engage in this assessment.

136. On this appeal, we do not consider it appropriate to classify the objective seriousness of the offending in respect of a hypothetical range. Rather, we consider it more appropriate to identify features of the offending which inform the “nature and circumstances of the offending”: see s 33(1)(a) of the Crimes (Sentencing) Act.

137. In the present case, these included the following: (a) The victim was 12 years old at the time that the offending commenced. This age is within the lower to middle range of the offending encompassed by the provision (namely, 10 years to 16 years). The appellant was aware of the victim’s age. (b) There was a significant age disparity between the appellant and the victim. The appellant was 49 years old at the time of the offending. (c) The period of grooming was approximately three months (the first training session was on 24 March, and it appears that the grooming continued until the appellant’s arrest on 27 June 2020). The grooming occurred regularly, increasing from initially once per week for an hour, to twice per week for approximately two hours. (d) The appellant’s use of his coaching position involved a significant breach of trust. The grooming involved the use of the appellant’s position and pre-existing contact with the victim to initiate a personal relationship. (e) As counsel for the prosecutor submitted, there was also an “element of manipulation” in the appellant isolating the victim on a field not visible from the road during their sessions, and warning the victim’s parents not to tell anyone about the sessions due to COVID-19 restrictions.

138. In assessing the nature and circumstances of the offence, it is also important to bear in mind that the offending that is covered by s 66(1)(b) of the Crimes Act is wide. It encompasses not only sexual conduct – such as sexualised conversations, the showing of pornographic material to the child and/or touching of the child – but also conduct that is “otherwise benign”, but which is engaged in “with the intention of making it more likely that the young person would commit or take part in, or watch someone else taking part in, an act of a sexual nature”: see further Presentation Speech, Crimes Legislation Amendment Bill 2017 (No 2) (ACT) (Hansard, 30 November 2017, p 5388).

Comparative cases

146. There are no comparative cases concerning offences committed under the current s 66(1)(b) of the Crimes Act in this jurisdiction.

147. The primary judge referred to a number of comparative cases from New South Wales concerning similar offences: Porter (No 3) at [267]. As her Honour correctly observed, those cases concerned an offence which carries a maximum penalty which is almost double the maximum penalty in this jurisdiction, and which also required proof of additional elements. Those decisions are of no guidance in assessing whether the sentence imposed was manifestly excessive.

Plea of guilty

148. The primary judge afforded the appellant a 20% discount in relation to his plea of guilty in respect of Count 3, accepting that the plea was “entered at an early (but not the earliest) stage of proceedings and [was] of significant utilitarian value”: Porter (No 3) at [228]. This finding was not challenged by either party and will be applied in our consideration of this ground.

Conclusion

149. There can be no question that the offending in the present case was serious. As seen in Riley’s victim impact statement, offences of grooming have the potential to cause serious harm to children, which may be grave and long lasting: see R v Johnston [2020] ACTSC 46 at [16]. In particular, even where the grooming does not result in an offence of sexual assault, the offending may increase the vulnerability of the child and cause a damaging loss of the capacity for the victim to trust people: Adamson v R [2015] VSCA 194; 47 VR 268 at [47] – [49]. In the present case, the gravity of the offending was heightened by the breach of trust occasioned by the appellant’s position as the victim’s private coach.

150. However, it must also be borne in mind that the maximum penalty (which is the guidepost against which the sentence must be assessed) in this jurisdiction is imprisonment for 7 years. Bearing in mind this maximum penalty and the wide range of offending which may be captured by this offence (see at [138] above), whilst giving full weight to the recognition of the harm caused and the need for general and specific deterrence, we consider that a starting point of imprisonment for 3 years and 9 months was manifestly excessive.

151. On resentence, we will impose a starting point of imprisonment for 2 years, which, following a 20% discount for the early plea, will result in a term of imprisonment of 1 year, 7 months and 6 days.

Totality

152. The sentences imposed for Counts 1 and 4 were not challenged. However, as we are imposing new sentences for Counts 2 and 3, it will be necessary to reconsider questions of totality for all four charges.

153. We have considered the issues of concurrence and accumulation in accordance with the principles set out in O'Brien v The Queen [2015] ACTCA 47; 19 ACTLR 244 and R v Gommeson [2014] NSWCCA 159 at [100] – [116]. In particular, whilst we have been careful to impose an overall sentence that is ‘“just and appropriate” for all of the offences (O’Brien at [26]), we have borne carefully in mind that the offences were committed against multiple child victims, and that the overall sentence must reflect the harm suffered by each of the victims: O’Brien at [26(c)]; Benn v R [2023] NSWCCA 24 at [183] and Gommeson at [100], [106] and [114].

154. In resentencing the appellant, the Court must also redetermine the appropriate non-parole period to be imposed. The primary judge imposed a non-parole period that was 62.5% of the head sentence. In redetermining the non-parole period to be imposed, we have borne in mind that “[t]here is no mathematical formula by which the length of a non-parole period, or its proportion to the head sentence, is fixed”, and that “the actual period of full-time imprisonment will often be more important than its mathematical relationship with the head sentence”: The Queen v Ruwhiu [2023] ACTCA 18 at [112] - [113]. The application of these principles in the present case leads to a ratio that is higher (although not significantly higher) than that imposed by the primary judge.

155. The sentences to be imposed (following discount) will be as follows: (a) Count 2 (CC2020/7714) – 11 years, 10 months and 23 days’ imprisonment, commencing on 18 November 2021 and expiring on 10 October 2033. (b) Count 1 (CC2020/11987) – 3 years and 4 months’ imprisonment, commencing on 11 January 2033 and expiring on 10 May 2036. (c) Count 3 (CC2020/13262) – 1 year, 7 months and 6 days’ imprisonment, commencing on 12 September 2035 and expiring on 17 April 2037. (d) Count 4 (CC2020/11989) – 2 years’ imprisonment, commencing on 18 November 2036 and expiring on 17 November 2038.

156. The total effective sentence is imprisonment for 17 years. The overall non-parole period to be imposed is 11 years’ imprisonment.

Orders

157. For the above reasons, the following orders are made: (1) Leave to appeal is granted. (2) The appeal is allowed. (3) The appellant is resentenced to a total effective sentence of 17 years’ imprisonment, made up of the following four individual sentences: (a) For the offence of using a child under 12 years of age to produce child exploitation material (CAN2020/11987), the appellant is convicted and sentenced to 3 years and 4 months’ imprisonment, commencing on 11 January 2033 and expiring on 10 May 2036. (b) For the offence of engaging in a sexual relationship with a child under special care (CAN2020/7714), the appellant is convicted and sentenced to 11 years, 10 months and 23 days’ imprisonment, commencing on 18 November 2021 and expiring on 10 October 2033. (c) For the offence of grooming a young person (CAN2020/13262), the appellant is convicted and sentenced to 1 year, 7 months and 6 days’ imprisonment, commencing on 12 September 2035 and expiring on 17 April 2037. (d) For the offence of possessing child exploitation material (CAN2020/11989), the appellant is convicted and sentenced to 2 years’ imprisonment, commencing on 18 November 2036 and expiring on 17 November 2038. (4) The overall non-parole period will be 11 years imprisonment, commencing on 18 November 2021 and expiring on 17 November 2032.

I certify that the preceding one hundred and fifty-seven [157] numbered paragraphs are a true copy of the Reasons for Judgment of the Court Associate: Date: 15 March 2024 ANNEXURE A

Porter v R [2024] ACTCA 9

Conclusion 237․ In my view, the complainant presented as an honest and impressive witness, who did his best to recall undoubtedly traumatic events from his childhood and who made appropriate concessions to propositions put to him by counsel for the offender.

238․ For example, he agreed that he mainly saw the offender during the summer months, outside of the football playing season, and that it was mainly in the summer months that the offender stayed over at his family home. He also agreed that he was injured throughout the 2016 season, although he disputed that he saw less of the offender due to this, stating that he was involved in “ongoing recovery”.

239․ Although he did not remember the exact dates, the complainant also agreed with counsel for the offender’s proposition that there were a number of occasions when the complainant and his family attended movies, and other events, with the offender.

240․ In terms of the issues in dispute, counsel for the prosecution submitted that the complainant’s answers in cross-examination were consistent with his evidence-in-chief. I agree. This is particularly so, in terms of the numbers of occasions that the offender engaged in sexual activity with the complainant, and the number of occasions that sexual activity included penile-anal intercourse.

241․ In terms of the number of times sexual activity took place between himself and the offender, the complainant maintained that his answer in his EICI was accurate (being approximately 35 to 45 times), explaining that he came to his “guesstimation” by considering factors such as how old he was at the time, and the number of opportunities the offender had to abuse him.

242․ The complainant’s evidence, that penile-anal intercourse was part of the ongoing activity from the second time it occurred, and that the nature of the sexual activity revolved around what the offender, not what the complainant, wanted, is wholly consistent with the power imbalance that existed in this unlawful sexual relationship between the complainant and the offender.

243․ The prosecution submitted that the offender gave untruthful evidence about his contact with the complainant so as to minimise the opportunities to engage in sexual activity to align with how many occasions the offender stated sexual activity occurred. In my view, there is force to this submission. 244․ The offender, in his evidence, stated that the offender spent the night at the complainant’s house approximately 15 times over three consecutive summers.

245․ In my view, the offender’s evidence as to how many times he stayed at the complainant’s house is an attempt to minimise the number of opportunities he had to engage in sexual activity. It is at odds with the undisputed evidence of the complainant’s stepfather that the offender slept at their house about 20 to 30 times.

246․ Another example of the offender minimising contact with the complainant was his evidence that, after the complainant’s move to play AFL for Queanbeyan in 2017, he did not engage in any personal training with the complainant. This is at odds with, again, the evidence of the complainant’s stepfather, that the offender continued to have private training sessions with the complainant after his move to the Queanbeyan club.

247․ The offender, in his evidence, stated that he had sex with the complainant about 14 or 15 times and that the majority of this activity occurred in “the two periods of summer training (2015/2016 and 2016/2017). On his own evidence, the offender engaged in sexual activity with the complainant in the summer of 2017/2018 on at least three occasions, as well as on the Queen’s Birthday of 2018, and once in between (making five occasions total) (T99.27-36).

248․ With the majority of the occasions occurring in the summers of 2015/2016 and 2016/2017, as well as the five occasions listed above, and other occasions stated by the offender during the course of the football seasons, counsel for the prosecution submitted that the complainant’s estimate of about 35 to 45 times is credible and realistic on the evidence. Again, there is forensic force to this submission.

249․ Further, the undisputed evidence of the complainant’s mother is consistent with the complainant’s evidence. Similarly, it was submitted, the offender’s acceptance of the complainant’s general description of the sexual activity, including the regular and frequent use by the offender of dildos to penetrate the complainant’s anus, from the very first occasion, is consistent with the complainant’s evidence.

250․ The complainant gave evidence that penile-anal intercourse was part of their ongoing activity from the second time that it occurred, and that the nature of their sexual activities revolved around what the offender wanted, not what the complainant wanted.

251․ As stated earlier, the complainant’s evidence is wholly consistent with the power imbalance that exists in an unlawful sexual relationship between a young boy and a mature man, between the complainant and the offender. 252․ In my view, the evidence supports the complainant’s version of events, that the offender engaged in sexual activity with him on at least 35 occasions and that each occasion, bar the first, involved penile-anal intercourse as part of the sexual activity engaged in thereafter (Q620A of the complainant’s EICI).

253․ The breaking of the trundle bed in the complainant’s bedroom is consistent with the sexual activity that the complainant stated took place on multiple occasions in his bedroom. It is also consistent with the undisputed evidence of the complainant’s mother and stepfather, who note in their statements the breaking of the trundle bed.

254․ It is not accurate to describe the complainant’s account of the sexual activity that th occurred on his 14 birthday as “brief and generic” compared to the offender’s account.

255․ It is not accurate to state that the complainant accepted in cross-examination that he and the offender went to see “The Force Awakens” on 4 February 2016. The complainant agreed that he saw this movie with the offender, but was consistent in his evidence that he was not sure of the date.

256․ It is not accurate to describe the complainant’s evidence that sexual activity occurred every time the offender stayed at the complainant’s home in contrast to his answers in cross-examination. The complainant stated in his EICI that sexual activity occurred “Um, whenever he came over to stay, like, or came over to play board games” (Q758A). The use of the word “whenever” does not necessarily imply that the complainant was asserting that sexual activity occurred every time the offender stayed over, and should be read in context with his evidence (for example at Q594A Q620A, Q660A, Q737A and Q744A).

257․ I note that the prosecution conceded that there is no evidential basis upon which to place the sexual activity that occurred in the complainant’s home as the “evening or early the next morning”. This was, however, an error of the summary of the complainant’s evidence and does not reflect on the court’s assessment of the complainant’s evidence.

258․ There is no evidence from Caleb Parker. As referred to in the evidence, he was one of the complainant’s “idols”. In cross-examination it was put to the complainant that when police spoke to Caleb Parker he made no complaint of any sexual misconduct concerning the offender. I therefore cannot and do not make a finding whatsoever concerning the offender’s activities with Caleb Parker. There is no evidence.

259․ Nevertheless, I am persuaded that before the first instance of sexual activity with the complainant, the offender discussed with the complainant how the offender had made Caleb Parker “feel good” about himself. The offender confirmed in cross-examination that this conversation had taken place but stated that the reference to making Caleb Parker “feel good” about himself was with regards “to his footy career and where he progressed to”. On the complainant’s evidence, the offender had said that to the complainant prior to the first occasion that the offender had engaged in activities of a sexual nature with the complainant. That is, referring to, or implying, having undertaken sexual activities with Caleb Parker (Q30A, Q223A, Q240A, Q248A, Q253A-Q257A). The complainant rejected in cross-examination that the reference to sexual activities was an embellishment (T80.25-30). I find beyond reasonable doubt that the reference to Caleb Parker prior to the first occasion was part of the sexual grooming the offender undertook of the complainant. I am satisfied beyond reasonable doubt of the complainant’s evidence in this regard, that is, that the offender referred to making Caleb Parker “feel good” and that the offender “hoped he could do the same” for the complainant, prior to walking the complainant to his bedroom.

260․ As I observed at the outset, I found the complainant to be an impressive witness. His evidence was compelling. In my view, he gave truthful evidence and was not undermined in cross-examination as discussed above. I have grave reservations about the offender’s evidence. The impression that I gained from analysing his evidence in the context of all the evidence is that the offender is deceiving himself as to what occurred and attempting in that way to minimise his own actions. It should be noted that there is complete inconsistency between what the offender initially told the police and his evidence before me in court. Further there are significant inconsistencies referred to above between the evidence of the offender on the one hand and the evidence of the complainant’s mother and stepfather on the other.

261․ I do not consider that there is a reasonable possibility that the offender’s recollection is correct as I do not accept the offender’s evidence for the reasons outlined above.

262․ I am satisfied beyond reasonable doubt of the account given by the complainant of 35 to 45 occasions. For the purposes of this factfinding exercise, I propose to sentence on the basis that there were 35 occasions of sexual activity and that penile-anal penetration occurred after the first occasion of sexual activity, that is, from the second occasion. I have formed this view taking into account the complainant’s evidence concerning the “new normal” after the first occasion of penile-anal intercourse (Q620A of the complainant’s EICI).

263․ I am satisfied beyond reasonable doubt that the complainant penetrated the offender’s anus with his penis on three occasions and the other occasions of penile-anal sexual intercourse involved the offender penetrating the complainant’s anus. I am also satisfied that on one occasion where the offender was penetrating the complainant’s anus at the complainant’s home, the offender ejaculated into the complainant’s anus, without the use of a condom.

264․ It is important that I underline that the issue is not a choice between two inconsistent versions. In coming to my findings, I have taken into account Liberato v The Queen (1985) 159 CLR 507 to the effect that even if I prefer the evidence of the prosecution, I should not make that finding unless I am satisfied beyond reasonable doubt of the truth of that evidence. I cannot find an issue against an accused if that evidence gives rise to a reasonable doubt. The evidence of the offender has not given rise to a reasonable doubt.

265․ I am satisfied beyond reasonable doubt of the complainant’s evidence. I note that it has been described in R v Johnson [2015] SASCFC 170 at [2] as a “perverse paradox that the more extensive the sexual exploitation of a child, the more difficult it can be proving the offence”: see also the Explanatory Statement to the Royal Commission Criminal Justice Legislation Amendment Bill 2020 (ACT), which introduced the current form of s 56 of the Crimes Act. There is no such difficulty in this case.

266․ The prosecution case is proven beyond reasonable doubt.