R v B No. SCCRM-99-130 Judgment No. S403 [1999] SASC 403

Supreme Court of SA|1999-09-21|Before: Lander JJ, Millhouse J, Duggan J

The application to amend was adjourned and came on for further consideration at the end of the appellant's case.

The transcript records that the amendments to counts 1 and 3 were made by consent but there was objection to the proposed amendments to count 2.

The application to amend all three counts was allowed.

The appellant was convicted on all three counts.

The application for leave to appeal sought leave to appeal against both conviction and sentence but the application for leave to appeal against sentence was refused. The appellant orally sought leave to appeal against sentence at the hearing of the appeal against conviction. Although the appellant had not complied with the provisions of r15 of the Supreme Court Criminal Appeal Rules 1996 the Court made an order dispensing with compliance with the rules and heard that oral application.

The accused is married to Dianne B and they have four children of which T is the eldest. She has a brother M who was born on 9 January 1986 and was thirteen years of age at trial. She also has two younger sisters.

The Crown case was that the appellant had engaged in a course of conduct with T and that the three incidents in the three separate counts were representative of that course of conduct.

The Crown, in opening, said that the first incident occurred in 1995 when T was eleven years of age. It was claimed that T was taken behind a shed in the backyard of their house where the appellant kissed her on the mouth and put his tongue in her mouth for a short time.

It was alleged the second count occurred when T was eleven years of age and whilst her mother was away over the weekend. It was said, in opening, that she was lying on a mattress in her room playing a video game when the appellant lay down next to her. He got up and put three cardboard boxes against the door, lay down again on the mattress and started undoing the buttons of T's jumpsuit.

It was claimed, in opening, that he put his hand inside her jumpsuit and touched her on the chest. He then moved his hand towards T's vagina and rubbed it with his fingers. It was claimed that the appellant put his hands inside of her vagina removing his hand when she said "ouch". He then undid his fly and pulled her hand towards his penis. She pulled her hand away. He kissed her on the belly and when she told him she did not want him to do anything further he left the bedroom.

The act of sexual intercourse was alleged to be the insertion of the appellant's fingers in T's vagina.

The third count was alleged, in opening, to have occurred in the winter of 1996. Counsel told the jury that T would tell them that one day her father had told her that he had cut a hole in the pocket of her dressing gown. Later that night whilst she was in the lounge with the family, watching T.V., and while she was sitting on her father's lap, her mother went to the toilet.

It was alleged that she would say that her father put his right hand in her dressing gown pocket, pulled up her nightie and touched her on the vagina. It was claimed that he rubbed her vagina, removing his hand only when his wife returned to the room.

It was claimed, in opening, that the family moved to the Christies Beach Caravan Park near the end of 1997 and the course of conduct, of which the three incidents were representative, continued until about December 1997. It was the Crown case that the appellant ceased this conduct when he was told by T that what he was doing was wrong.

T was fourteen, nearly fifteen, when she gave evidence.

She described the first incident as counsel had opened the case except that she did not say in her evidence in chief that the appellant had put his tongue in her mouth.

She said the second incident occurred when she was still eleven years of age. She described the events up until the moving of the boxes to the door. She said those boxes were in her room because the family was planning to leave the house to go to Darwin. She was asked:

"Q Did you end up moving from Hackham West at some stage. A Yes. Q When was that. A At the end of 1997. Q Where did you go. A Christies Beach Caravan Park."

I will return to the significance of that evidence.

She said she was wearing a jumpsuit but nothing else. She described the events as counsel had opened the case. She said the appellant put his finger in her vagina and when she said "ouch", he said "sorry".

She said that he undid the fly of his jeans and that he took his penis out and tried to put her hand on it but she pulled her hand away.

She did not give evidence of him kissing her on the belly.

She did say that he tried to take her jumpsuit off her so that he could do it properly and to make it easier.

Her mother returned after the weekend but she did not complain to her about the incident because her father had told her that it was a secret between them.

In relation to the third count he said about one month later, during the winter, she was sitting on her father's lap watching television with the rest of the family. She can remember it was cold because there was a fire on.

Again she described the events as opened by Crown counsel. However, in relation to the actual incident of indecent assault, she said:

"My Dad started to put his hand in my pocket, put his two fingers through the hole, lifted up my nightie and he stuck his fingers in my vagina again, and I said 'ouch' and he said 'sorry' again".

She said, as counsel had opened, that that third incident occurred whilst her mother was out of the room. She did not complain to her mother about it because it was a secret between the appellant and herself.

She said the incident occurred whilst her brother and sisters were in the room watching television.

The account given by T was in one respect different than opened upon. In opening, it was not said that the appellant put his finger inside her vagina or that it hurt but "she will tell you that she was rubbed softly, that it didn't hurt."

The circumstances described by T in her evidence would have given rise to a charge of unlawful sexual intercourse rather than indecent assault.

T said that the appellant had touched her indecently on several other occasions. She said that he had touched her on her vagina lots of times. In fact after he cut the hole in the pocket of her dressing gown it seemed to happen, she said, every week. She said that he also touched her on the chest nearly every time that he touched her vagina. She said he only kissed her, in the manner described, on one occasion.

She told her father to stop his conduct in 1997 whilst they were living in the caravan park.

T was in grade 5 in 1995 and grade 6 in 1996. She said the first incident occurred whilst she was in grade 5.

In cross examination she agreed that the shed, behind which she was taken by her father, was constructed in 1996 and that the first incident occurred about three months after that time. She agreed that it must have occurred in about May of 1996 and she was then in grade 6. She said the second incident occurred two months after the first incident so it must have occurred in about July 1996 and the third incident occurred one month after; in about August 1996.

Her evidence was that all three counts occurred within a period of three months.

In relation to the first incident it was put to her that there was an occasion where she had helped the appellant with some paving. After they had completed that work she had sat down next to her father and said something to the effect that she was ugly. It was put to her that none of the other matters had occurred.

It was put to her that the second count occurred when her mother was away for the weekend. Her mother had gone away because she needed a rest. In her cross examination no precise date was identified for this second incident. The accused's counsel sought to further cross examine T in relation to when it was her mother had gone away for the weekend. Further cross examination was allowed and it was put to her that that incident had occurred on 12 April 1997. T said she did not disagree with that and if that was the date then the first incident occurred two months before that and the third a month after.

The appellant had no difficulty in identifying the occasion when this incident was said to have happened. There was only one occasion when the appellant's wife stayed away from home at a hotel. That was in April 1997.

She maintained that the second incident had occurred in the manner in which she described. She agreed that she assumed that her father had taken his penis out of his pants simply because she had heard the zip of his fly operate.

In cross examination she accepted that the dressing gown which she was wearing on the occasion of the third count had previously been her mother's. She was not prepared to accept that the dressing gown had a hole in it at the time that her mother had given it to her. Again it was put to her that the incident which she had related had not occurred at all, but she denied that.

It was also put to her that she had not complained to her mother about either of the first two incidents. She said, in cross examination, that she did tell her mother about the second incident later. She said she told her a couple of weekends later.

That evidence was not inconsistent with her evidence in chief. In evidence in chief she had been asked:

"Q At that stage did you say anything to your mother about what had happened. A No."

The question in evidence in chief was limited to whether she had told her mother about this incident at the time that she returned from her holiday. She was not asked in evidence in chief whether there was any other occasion when she complained to her mother about her father's conduct.

She admitted, in cross examination, that there was an occasion where she had a conversation with her mother. The conversation, she said, occurred at a cafeteria at Colonnades. During that conversation her mother told her that she had been raped by one of her boyfriends. She also told her that she had been indecently interfered with by her brother-in-law, Eric. It was put that she had been told by her mother that Eric had fondled her and poked his fingers into her vagina. She admitted that what she was told by her mother was similar to what she was telling the Court about her father.

It was put to her, in cross examination, that she never complained to her mother about her father's conduct but she denied that. In re-examination she said she told her mother after her mother had told her about the assaults she had endured.

On that matter the complainant was not challenged. That is not to be critical of the appellant's counsel because the evidence came out in re-examination.

It was the complainant's evidence that she spoke to her mother about the first and second incident weeks after the second incident. If that was correct it would have to be supposed that she spoke to her mother before the third incident, which occurred a month after the second incident. That must be so because otherwise she would have complained about all three incidents.

If, again, she was right about the sequence of events then it is surprising that she did not complain to her mother about the third incident when it occurred.

It is also surprising that she did not complain to her mother about the continual abuses by her father after that time.

Her evidence suggests that there was a conversation in which she complains of two discrete episodes but no further complaints about previous unrelated episodes and no further complaints about continuing abuse. Although to be fair to the complainant the issue of complaints was not further explored.

In any event she was not challenged about those matters.

The complainant and her family had moved into a caravan in the caravan park in October 1997. Her parents were poor. Her mother was ill. She had a bad back and has to walk with sticks. There were four children all demanding attention of her parents. She argued with her parents and she admitted that they were "pretty big arguments". She said that there was not enough to eat. The complainant said that she had left home on 29 June 1998. She left to live at Aldinga. Before she left she was very unhappy.

It was put to her that these complaints had been invented so that she could leave home. She denied that suggestion.

In re-examination she said that her relationship deteriorated with her father after she told him that she did not want him to do those things to her.

In the middle of 1998 there was school assembly where the school was addressed about sexual matters including sexual assault. After she heard that address she was angry with her father about what he had done.

The Crown also called Detective Albon, who gave evidence he collected a dressing gown which was a relevant piece of evidence to these matters and had interviewed the appellant but the appellant had declined to answer questions.

A statement from a forensic scientist was tendered. The forensic examination could not establish whether the hole in the dressing gown was caused by wear or was the result of a cut.

The appellant gave evidence in accordance with his counsel's cross examination of his daughter in relation to the first incident. The incident involved no more than his daughter telling him that she was ugly and he reassuring her and comforting her.

In cross examination the appellant accepted that there was an occasion where he kissed T on the lips just outside the shed in the back of their house. The kiss was no more than a peck. He did not lick her neck. He was able to remember that his wife was at the shops at the time.

In relation to the second count he said that his wife went away for a weekend on 12 April 1997. The reason he could remember that date was because he ceased working at midnight on 11 April 1997. The appellant established the date upon which he left his employment by the tender of a separation certificate (Exhibit D2). Mrs B went to stay at the Lonsdale Hotel. She went away because she was having trouble with her back. She left about 10 o'clock in the morning.

He said that in October 1996 his wife had suggested they go to Darwin. They had packed for that purpose. The intention was to live in a caravan park for a short time to save up sufficient money for petrol to drive to Darwin.

That is why there were boxes stacked around the house including T's room.

They had also sold various items of furniture. They had sold the dining room suite, a video recorder and a television. By April 1997, there was no television set or video recorder in T's room.

In any event, after his wife left that morning to stay in a hotel he sat down with the children and played cards. He then did some housework and the children played together. The children were then asked to clean their rooms.

The appellant was able to remember that T was wearing a jumpsuit that day. He did not enter her bedroom except for checking that she had cleaned it properly as he had asked. He said there was no such incident of the kind of which she complained.

In cross examination, in relation to the second count, he was challenged as to how it was that he could remember that they had sold the television which was previously in T's room prior to 12 April 1997. He agreed it was possible that he was wrong about that. Otherwise the appellant did not deviate from the account which he had given in evidence in chief and which his counsel had cross examined upon.

Importantly, however, he was able to identify the two discrete incidents to which his daughter referred in her evidence. There can be no doubt that the appellant and T were talking of the same incident when the appellant's wife and the victim's mother stayed at the Lonsdale Hotel.

There was only one incident in the shed during the time the accused was paving that shed and whilst he was sitting having a beer.

The appellant denied that the third incident, or anything of the kind, ever occurred. In relation to the third count he agreed that T used to wear the dressing gown which was exhibited in the trial and that she would sit on his lap. He did not agree that he had ever assaulted her in the way in which she described.

The appellant said that his daughter left home in circumstances where she left for school one morning and did not return. She gave no warning of her leaving.

He said that after they moved into the caravan T began having problems with her school work. He agreed that she had less communication with him after that time. By the time she left he had noticed a change in her attitude towards him. He denied, however, that there was ever a conversation where she asked him to stop touching her or that that was the reason for the change of attitude.

The appellant's son, M, gave evidence for the defence. M said that T slept in a room with her two sisters in which there was also a T.V. and a video. He said that he remembered the T.V. and the video being sold before his mother went away for the night to a hotel.

He remembered the day that his mother was away and he remembered that he did not see his father go into T's room. He said if his father had gone into T's room he would have noticed that. He said, in cross examination, that he was able to remember that it was 12 April 1997 when his mother went to stay in a hotel. The jury had the advantage of seeing M. His evidence, however, does not read well. His explanation for why he was able to remember the exact date his mother went away is unconvincing. His memory of the events that day is surprisingly good for a young person who has only been recently called upon to remember that day.

He said that T never complained to him about anything their father had done to her. It was no part of the prosecution case that she had.

The appellant's wife, Dianne, gave evidence. She is thirty-seven years of age and they have been married for fifteen years. She is unwell. She said she had a growth on the lower part of her back and she had just recently been informed that she also had a growth on the brain. She was to undergo tests the day after she gave her evidence.

She described T's leaving as being a complete shock to her. She said that she had no warning that it would occur and she said that the first she knew of it was when she was informed by the Police.

Prior to her leaving, T had been very moody, frequently arguing with her parents about her friends and about money.

She said that she stayed at the Lonsdale Hotel, on 12 April 1997, the day after her husband ceased work. It is the only time that she has ever been away in those circumstances. She said that the television in T's room had been sold sometime in 1996 and there was no television or video in T's room at the time that she stayed at the Lonsdale Hotel.

She identified the dressing gown which she said previously had been hers. There was a hole in the pocket of the dressing gown which she had made when she wore it.

She described how she had told T about how she had been sexually assaulted by her brother-in-law in the presence of her sister. She said that T never complained to her about having been sexually abused. In particular there was not an occasion at the Cove Cafeteria, Colonnades where T told her about any sexual abuse. The conversation that she had with T about sexual abuse that she had suffered did not take place at the Colonnades Shopping Centre. She said that conversation took place at her home. She said she was absolutely positive about that.

That evidence may be contrasted with the accused's counsel's cross examination of the complainant. He put to the complainant that the conversation between T and Mrs B did occur at the Cove Cafeteria at the Colonnades.

After her evidence the Trial Judge gave leave to the Crown to amend the information in the terms sought.

"I formally note that I consent to the amendments to the particulars of counts one and three. I note what your Honour said this morning but I formally object to the amendment proposed to the second count, because it goes beyond an amendment of any particulars charged to a defendant under any particular sub-section. I don't want to take it any further than that."

1. The verdict was unreasonable and cannot be supported by the evidence.

(a) There was no evidence, or no proper evidence upon which the jury could have found that the child was aged eleven years at the time of the commission of count 1, or alternatively, there was no evidence or proper evidence that she was aged twelve at the time of the commission of count two.

(b) The weight of the evidence was against the accused committing count (sic) 2 and 3. No complaint was made concerning any of the offences until at least one year after the commission of the last of the offences the complainant's evidence was uncorroborated, and contrary to the evidence of the accused, the mother of the complainant, and the brother of the complainant.

2. The learned Trial Judge erred in allowing the prosecutor to amend the information at the close of the defence case. The amendments included an amendment to count 2 which substituted another offence for that originally charged, from a charge under s49(1) of the Act to a charge under s49(3) of the Act.

4. The learned Trial Judge erred in that he allowed an amendment to count 2 which gave a possible time frame of one year in which the offence might have occurred, and to count 3, which gave a possible time frame of twenty-one months in which the incident was alleged to have occurred.

The appellant sought leave to appeal on a further ground which was a proposed ground three:

"3. The learned Trial Judge did not instruct or adequately instruct the jury that the evidence of the complainant was or may be unreliable because of her age at the time of the alleged offences, the discrepancies in dates which forced the amendments, and the non-reporting of the alleged offences for a period of about twelve months or more after their commission."

The learned Trial Judge, in refusing leave, said that those matters could be properly addressed under ground one.

I am not so sure, with respect, that that is right.

The question whether the instructions to the jury were adequate, having regard to the matters raised in the proposed ground three, is quite a different question from that raised in ground one. The jury might have been adequately directed in all respects but still the verdict may be unsafe and unsatisfactory.

In my opinion, they are quite separate questions which have to be addressed separately.

However, in the end, the appellant has not sought leave from this Court in respect of ground three. Whilst the appellant complains that the verdict was "unreasonable" because of the various matters referred to in ground three there is no further application for leave to appeal on the ground that the learned Trial Judge's directions were not adequate.

In those circumstances this Court is not directly called upon to consider the adequacy or otherwise of the learned Trial Judge's directions, although if this Court believed that there were aspects of the learned Trial Judge's directions which were inadequate then, of course, this Court would have to consider whether or not the verdicts could stand for that reason alone.

It seems to me that this appeal would be best addressed by first considering the amendments to the particulars to the three counts which were sought during the appellant's case and allowed at the end of the appellant's case.

In considering those amendments it has to be observed that the appellant did not object to the amendments to counts one and three but only to count two and then in so far as the amendments meant that the count amounted to a different charge to that which had been previously laid.

There is no doubt that the Court had power to allow the amendment of the information even though no application was made to amend the information until after the close of the Crown case. In fact the amendments were not made until after the conclusion of the evidence in the appellant's case.

Section 277 of the Criminal Law Consolidation Act requires an information to contain a statement of the specific offence or offences with which the accused is charged together with such particulars as are necessary for giving reasonable information as to the nature of the charge.

The particulars of the offence charged are for the purpose of giving reasonable information as to the nature of the charges. An accused is entitled, as a matter of fairness and in order to ensure a fair trial "to be apprised not only of the legal nature of the offence with which he is charged but also of the particular act, matter or thing alleged as the foundation of the charge": Johnson v Miller [1937] HCA 77; (1937) 59 CLR 467 at 489.

In a case such as this the particulars perform the broad task "of ensuring that the forensic contest is directed to the same issues, and that the accused is treated fairly": R v Pfitzner (1976) 15 SASR 171 at 192. In this case the particulars in the information only gave information as to the period within which the offence was said to have been committed. Both before and after amendment the period particularised was lengthy.

But the particulars performed their task adequately enough by ensuring the forensic conduct was directed to the same issues. Here, both the complainant and the appellant identified three discrete events, the first when the complainant helped the appellant with the paving, the second when the complainant's mother was away from the home and the third a month later.

The amendments to the particulars in counts 1 and 3 did not occasion the appellant any embarrassment or injustice. The amendments simply brought the particulars into line with both the complainant's and the appellant's evidence. The amendments were not opposed and cannot now be challenged.

The amendment to the second count raises other matters.

The offence with which the appellant was first charged is a statutory offence created by s49(1) of the Criminal Law Consolidation Act, in which the age of the victim is an element. As I have said it is a different offence from that created by s49(3). Section 49(4) provides a defence to a charge under s49(3) which is not available on a charge under s49(1).

In so far as the sub sections to s49 include the age of the victim as an element those subsections may be contrasted with an offence created by s56. That section creates only the one offence for which the penalty is greater when the victim is under the age of twelve years.

The amendment sought by the prosecution in this case amounted to the laying of a fresh charge because the amendment meant that the offence was no longer laid under s49(1) but under s49(3). The appellant was not re-arraigned on that new charge under s49(3) on the information after amendment, but no point is taken for that failure on this appeal. I think that the appellant was right not to complain of the failure to re-arraign because no prejudice was caused to the appellant thereby: R v Go (1990) 73 NTR 1. Neither the appellant nor his counsel could have been under any misapprehension as to the charge on the second count. No injustice was caused to the appellant: R v Radley (1973) 54 Cr App R 394.

The amendment to count 2 did not cause the appellant any embarrassment or prejudice. The evidence as to when this incident occurred was all to the same effect; the day Dianne B went to stay at the Lonsdale Hotel was in April 1997. The complaint, the appellant and his witnesses all addressed that event.

The amendments did not cause any prejudice or any injustice to the appellant.

The Crown is usually, of course, bound by the particulars which it alleges against an accused person. The prosecution cannot be allowed to amend those particulars where the effect of any amendment would cause prejudice to an accused person by having a tendency to interfere with that person's fair trial.

In this case, however, the dates were not critical either to the prosecution case or to the appellant's defence. The complainant identified three separate incidents all of which the appellant was able to address without reference to date.

In my opinion, this ground of appeal must be dismissed.

The question which this Court must answer in respect of ground one is whether the verdicts in respect of counts one and three are unsafe and unsatisfactory.

That requires this Court to determine whether, upon the whole of the evidence, it was "open to the jury" to be satisfied beyond reasonable doubt that the accused was guilty. In carrying out that exercise "the court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses. On the contrary, the court must pay full regard to those considerations.": M v R [1994] HCA 63; (1994) 181 CLR 487 at 493.

In M v R (supra) at 494 the majority Mason CJ, Deane, Dawson and Toohey JJ said that that test should be applied by this Court in the following manner:

"In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. It is only where a jury's advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred. That is to say, where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced. If the evidence, upon the record itself, contains discrepancies, displays inadequacies is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted then the court is bound to act and to set aside a verdict based upon that evidence."

I do not believe on a reading of the complainant's evidence that it lacks credibility. I have pointed out the discrepancies in the appellant's evidence from the Crown opening. Those discrepancies are not such as to give rise to a doubt or to the conclusion that there is any significant possibility that an innocent person has been convicted. I have also pointed out the failure by the complainant to complain to her mother about the assault complained of in count three, if she did, as she said, complain about the assault and the sexual intercourse referred to in counts one and two respectively.

That failure by itself or coupled with the inconsistencies to which I have previously referred does not suggest to me that it was not open to the jury to be satisfied beyond reasonable doubt that the accused was guilty.

In this case the jury did have an advantage in seeing and hearing the complainant give her evidence. They had the added advantage of seeing and hearing the appellant and his witnesses.

However, that is not an advantage which I rely upon for dismissing this ground of appeal because I do not think on a reading of the complainant's evidence that a doubt arises.

Of course, there were some difficulties about the dates but those difficulties do not suggest to me any unreliability on the part of the complainant. Indeed, in cross examination, she was able to articulate the period of time over which the assaults occurred and the sequence in which they occurred without any trouble. I do not read her evidence in relation to any of those matters as being unreliable.

In my opinion ground one has not been made out.

As I have said ground three was not the subject of leave but in any event there is nothing to suggest that any of the directions given by the learned Trial Judge were inadequate. The appeal against the convictions must be dismissed.

At the hearing of the appeal against conviction appellant's counsel made an oral application for leave to appeal sentence. Whilst an order was made dispensing with the requirements of the Supreme Court Criminal Appeal Rules 1996, so that the application for leave to appeal against sentence could be considered, this appeal should not be seen as any sort of precedent for such a procedure. If a convicted person wishes to renew an application for leave to appeal against conviction or sentence that person should observe the procedure provided for in the Rules.

The learned Trial Judge imposed separate sentences of imprisonment in respect of each of three counts which he made cumulative. On the first count he imposed a sentence of one year, the second two years and the third two years. He fixed a non parole period of two years in respect of the head sentence of five years.

The appellant is thirty-eight years of age. His conduct has had a devastating effect upon his family. The victim has left home and is cared for in a foster relationship. The appellant's wife is very ill and is having difficulty caring for the three remaining children. Indeed M, who is aged thirteen years of age, has been taken out of school to assist to care for his two younger sisters. In effect M is carrying out what otherwise would be his father's duties. His father ceased work in April 1997 to become his wife's carer.

The appellant has no previous convictions except a conviction for driving under the influence which is irrelevant, in my opinion, in the assessment of the appropriate sentence for these offences.

One cannot help but have sympathy for the appellant's family. The effects on his family are a relevant consideration in the sentencing process (s10(n)) Criminal Law (Sentencing) Act. They should not be punished for the appellant's conduct.

However the offences for which the appellant was convicted are very serious. He was in a position of trust and he abused that trust in almost the worst possible way.

As the appellant's spouse and remaining children have supported him in this matter the complainant is now no longer part of the family unit nor is it likely that she ever will be. Whilst they are not to be criticised for supporting him that support means that they cannot support the complainant.

Whilst I am concerned about the effect of this sentence upon the appellant's family, in my opinion, it cannot be said that a sentence of imprisonment of five years for these three separate incidents could be said to be manifestly excessive. Indeed, I would not even call the sentence severe. In those circumstances the application for leave to appeal against sentence was doomed to failure.

The non parole period which has been set is merciful. The very short non parole period recognises, in my opinion, the devastating effects of this sentence upon the appellant's family and allows him to be reunited as soon as possible with his family.

In my opinion the application for leave to appeal against sentence should be dismissed.

Criminal Law Consolidation Act 1935

Criminal Law (Sentencing) Act 1988

Criminal Law Consolidation Act 1935

Criminal Law (Sentencing) Act 1988

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