RA v R

Nature of the appeal

1. The applicant appeals against both conviction and sentence.
2. In the conviction appeal, the applicant relies upon a single ground under s 6(1) of the Criminal Appeal Act 1912 (NSW), namely, that the jury's verdicts were unreasonable, and cannot be supported, having regard to the evidence.
3. The principles to be applied in determining such a ground are well settled. They were not altered by the acquittal in the high profile case of R v Pell [2020] HCA 12. As noted in the applicant's written submissions, the principal authorities are the decisions of the High Court in M v The Queen (1994) 181 CLR 487; [1994] HCA 63 and SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13. The seminal passage from the decision in M at 493 states: "Where, notwithstanding that as a matter of law there is evidence to sustain a verdict, a court of criminal appeal is asked to conclude that the verdict is unsafe or unsatisfactory, the question which the court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. But in answering that question 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." (citations omitted)
4. While that decision determined a ground of appeal that the verdict was "unsafe and unsatisfactory", it has since been recognised that the proper statement of test is to adhere to the language of the applicable legislation (as the applicant has in the present case): MFA v R (2002) 213 CLR 606; [2002] HCA 53 at [46]. But the approach is the same.
5. The applicant's submissions also referred to the following passage from the decision of the High Court in Pell at [39]: "The function of the court of criminal appeal in determining a ground that contends that the verdict of the jury is unreasonable or cannot be supported having regard to the evidence, in a case such as the present, proceeds upon the assumption that the evidence of the complainant was assessed by the jury to be credible and reliable. The court examines the record to see whether, notwithstanding that assessment - either by reason of inconsistencies, discrepancies, or other inadequacy; or in light of other evidence - the court is satisfied that the jury, acting rationally, ought nonetheless to have entertained a reasonable doubt as to proof of guilt." (citations omitted)
6. With respect, that is an unexceptionable statement of the law as it has stood for decades. The preceding paragraph in Pell acknowledges just that. The Court said at [38]: "It should be understood that when the joint reasons in M v The Queen spoke of the jury's 'advantage in seeing and hearing the witnesses' as being 'capable of resolving a doubt experienced by a court of criminal appeal' as to the guilt of the accused, their Honours were not implying that it was only because there were, at that time, no practical means of enabling a court of criminal appeal to see and hear the evidence of the witnesses at trial that the jury's assessment of the credibility of the witnesses was of such potentially critical importance. The assessment of the weight to be accorded to a witness' evidence by reference to the manner in which it was given by the witness has always been, and remains, the province of the jury. Rather, their Honours in M were remarking upon the functional or 'constitutional' demarcation between the province of the jury and the province of the appellate court. That demarcation has not been superseded by the improvements in technology that have made the video-recording of witnesses possible."
7. In the present case, the argument in support of the conviction appeal was put in two ways. The primary argument was that the evidence of the complainant contained inconsistencies, discrepancies and inadequacies of such significance that the jury ought to have been left with a reasonable doubt as to whether the offences occurred at all. The inconsistencies identified were said to be such as to reflect on the complainant's reliability generally.
8. Alternatively, it was argued that the evidence could not establish beyond reasonable doubt that the offences were committed before the complainant turned 10. As explained above, if the incident occurred after her 10th birthday (which was in January 1982), the applicant ought to have been acquitted of count 3A for failure to prove the element of age.
9. It is not the law that the establishment of inconsistencies in the evidence in a criminal trial of itself establishes that the jury ought to have entertained a doubt. The resolution of such matters is their quintessential role. In MFA at [96] (also a sexual assault case), the High Court said. "There are, it is true, some aspects of the evidence that are less than wholly satisfactory. But that is not uncommon in most trials. Experience suggests that juries, properly instructed on the law (as they were in this case), are usually well able to evaluate conflicts and imperfections of evidence. In the end, the appellate court must ask itself whether it considers that a miscarriage of justice has occurred authorising and requiring its intervention. Although we accept that minds might differ on this question, as in any case that requires this Court to grant special leave to appeal, we are not ultimately convinced that the jury's verdicts were 'unreasonable' or 'unsupported' in the statutory sense." (citations omitted)
10. I have concluded that intervention with the verdicts is not authorised in the present case. It was well open to the jury to be satisfied beyond reasonable doubt that the acts alleged in counts 2 and 3A occurred as the complainant described. I am also persuaded that, making due allowance for the advantage enjoyed by the jury in seeing her give evidence, and noting the careful directions given by the trial judge concerning the issue of dates, it was open to the jury to be satisfied beyond reasonable doubt that the incident occurred before the complainant turned 10. In referring to the jury's advantage, I am referring not only to their opportunity to observe the demeanour of the witness but also their advantage in being immersed in the atmosphere of the trial. The jury is best placed to assess whether any particular inconsistency acknowledged by a witness derogates from the cogency of their evidence as to the critical events. It is only if this Court is persuaded that the jury "must, as distinct from might, have entertained a doubt" (emphasis in original) as to the elements of the offence that this Court is entitled to intervene with a verdict duly reached following a properly conducted trial: Libke v The Queen (2007) 230 CLR 559; [2007] HCA 30 at [113].
11. In the trial in the present case, the conflicting evidence as to dates was addressed in detail in cross-examination, in the closing addresses and in the judge's summing up. To conclude that the jury ought to have had a doubt in the circumstances of this case would usurp their function. I am of the view that the appeal against conviction must be dismissed.
12. It was common ground in the appeal that, if the Court did reach the conclusion that the conviction could not stand because of the conflicting evidence about dates, the Court could substitute an alternative verdict of carnal knowledge with a girl of or above the age of 10 years and under the age of 16 years contrary to s 71 of the Crimes Act, as allowed under s 7(2) of the Criminal Appeal Act. In light of the conclusion I have reached, it is not necessary to determine that question. However, for completeness, I indicate that, had I been persuaded to quash the conviction for failure to prove the age element of the offence, I would have substituted a verdict for the alternative offence.
13. There is also an appeal against the sentence imposed. I would dismiss that appeal.
14. My reasons for those conclusions are as follows.

The complainant's evidence

1. The complainant first reported the incidents to the police in early 2014 after learning about child protection and mandatory reporting in a TAFE course she was taking. She was 42 when she first went to police to report the offences and 47 when she gave evidence at the trial.
2. During the dates covered by the indictment, the complainant lived in two different suburbs and attended a number of different primary schools. I will refer to the places she lived, in the order in which she lived there, as suburb 1 and suburb 2. Only two of the schools are relevant for present purposes. I will refer to the first school as school A. The complainant attended that school for kindy and at least years 1 and 2 (1978-1979). I will refer to the second primary school she attended as school B. There is no precise evidence as to when she moved from school A to school B but it was no later than the end of year 4 (1981).
3. The offence in count 1 was alleged to have been committed at a time when the applicant had come to stay for a visit at the complainant's family home in suburb 1. As the applicant was acquitted of that count, it is not necessary to recite the evidence she gave in relation to it. It may, however, be relevant to record that the complainant said she liked her uncle at that stage. She thought he was a fun person to be around because he played with all the kids and showed her a lot of attention. She said that the incident itself "felt good" and that he asked her not to tell anyone about it and she promised that she would not.
4. The family later moved to suburb 2. The complainant's evidence about the second incident opened with the following exchange (after her description of the incident alleged in count 1): "Q. And do you remember then how long it was before you saw him again? A. It was some time because by then we'd moved over to [suburb 2], a new house. Q. We'll talk about that now, the [suburb 2] move. Do you remember how old you were when you moved to [suburb 2]? A. I think I was about nine. Q. Do you remember what year you were in at school? A. No, I would have been 10 because I was in year 5. Yeah, 9."
5. The last answer was significant because, throughout the whole of year 5, the complainant was 10, her birthday being in January. However, as was established during her evidence, she told police when she made her statement that the offences in counts 2 and 3A occurred when she was still at school A. That placed the incident in year 3 or 4 rather than year 5 which would mean that she was under 10 at the time of the incident.
6. The complainant said that their house in suburb 2 had a slight slope to it and that it was possible to get in under part of the house. She said the height of the space underneath the house was about 3 or 4 feet.
7. The complainant said the applicant had come to visit the family again for a couple of weeks. She said "I think it was summertime, because it wasn't cold". She repeated that she thought she was in "around year 5, 4 or 5" at that time.
8. The complainant described an incident one day when she went under the house and the applicant followed. She could not remember what she was wearing. She thought it was a weekend during the school term. She didn't remember it being holidays. She remembered going outside to play and said that she went down behind the house "down in the backyard near where the septic tank was" and that she went under the house. She said she went under the house alone and that her uncle followed.
9. Her description of the incident was as follows: "He laid a big towel out on the ground and said 'come and sit down over here' which I did. He then came and sat next to me and then started talking to me, again asking me how are things, how's school and then he told me to lie down on the towel and he laid down next to me and he was still talking to me at this time. Then he laid on top of me whilst still talking to me, I can't remember exactly what he was saying and then he kissed me on my left cheek and pulled my panties down. Then he - he took his jeans off and tried to have sex with me."
10. She remembered him telling her that she was pretty and kissing her cheek a few times "just lightly". She said that the applicant had his right arm beside her head and that he was touching her hair and using his fingers to play with her hair. She said he had his other hand down near his groin and that she felt the end of his hard penis go over her clitoris and down to the entrance of her vagina. She said she felt "a very burning and stinging sensation". She said he was pushing and trying to push his penis into her and it was hurting and that she said to him "stop, that hurts". As noted in the Crown's submissions, the description of a "very burning and stinging sensation" (if accepted) strongly supports the element of penetration. That issue is considered further below.
11. The complainant said that it was the end of the applicant's penis that was inside her when she told him to stop. She said she thought his penis was inside her for a short time. She said when that happened her vagina was sore and that it was "burning and stinging" and felt like her "skin had been cut almost". Again, that description supports the conclusion that there was penetration at least to the extent necessary to establish that element of the offence of carnal knowledge.
12. The complainant said she put her hands on the applicant's chest and was trying to push him off and was telling him to stop and that it hurt. At first he continued and then she pushed his chest harder and then he got off and she ran inside the house to the bathroom.
13. She said that, while she was trying to push him off, he was saying "shhh, it's okay, it's okay, it would [sic] be all right". She put her underwear back on and went back inside the house.
14. She said that, when she went inside the house, she went to the bathroom and ran herself a warm bath. She looked at herself and saw that she was red around the vaginal area and felt that it was still sore and was still hurting.
15. She said her mother came in and said "is that you [complainant's name]? What are you doing having a bath at this time of the afternoon?" or "this time of the day?" She responded that she just felt like one. She did not tell her mother at that stage what had happened to her because she was "too afraid". She said she was afraid because she thought she might have done the wrong thing and might be blamed.
16. At the conclusion of the evidence-in-chief, the Crown Prosecutor made an application for the witness to be allowed to revive her memory from her witness statement. The application concerned two aspects of her evidence.
17. The first related to count 1. The date range specified in the indictment for that count (1 December 1977 to 29 February 1980) broadly correlated with the years when the complainant was in year 1 (1978) or year 2 (1979). That was consistent with her statement (I acknowledge the statement is not part of the evidence for the purpose of the appeal; I am simply explaining why the charge was framed as it was). However, the complainant's evidence-in-chief was that the offence occurred when she was in "possibly kindergarten or year 1". After noting that the range in the indictment was when the complainant was in year 1 or year 2, the Crown submitted to the trial judge: "Obviously if it's kindergarten or year 1, we have the issue of doli incapax. In her statement she clearly says year 1 but in addition to that she says that the teacher was [Ms Brown, a pseudonym adopted by the trial judge during the trial]. We have a school report that has [Ms Brown] as the teacher for year 1 and year 2."
18. The trial judge refused the application on the ground that the complainant's statement, made in 2014, could not be said to be made at a time when the events were fresh in her memory, or at least not more fresh than they were at the time she gave evidence: s 32(2)(b)(i) of the Evidence Act 1995 (NSW). The Crown Prosecutor accepted that the same ruling would apply in respect of count 3A. The complainant's evidence-in-chief concerning that count acknowledged the possibility that she could have been 10 years old at that time because she was in year 5. Her evidence suggested that she probably moved from school A to school B during year 3 or 4. School reports tendered at the trial included a report from school B for year 4 and for June of year 5. The evidence was therefore quite clear that she had started at school B by the beginning of year 5. However, in her statement to police, the complainant had said that the second incident happened while she was still at school A, which was when she was in year 3 or 4 and only 8 or 9 years old. The Crown Prosecutor wished to revive the witness's recollection of that aspect of her witness statement. She explained to the trial judge "she needs to be under 10 for that charge your Honour and she says she is 9 or 10". The trial judge rejected that application for the same reason.
19. Following the rejection of the application, the cross-examination commenced. The cross-examiner took the complainant through the circumstances in which she had made her statement to police and then tested her as to a series of alleged inconsistencies between that statement and what she had said in her evidence-in-chief.

Alleged inconsistencies in the complainant's evidence

1. The applicant contends that the complainant's evidence exposed at least seven "significant inconsistencies" with her statement to police. It is convenient to address the matters raised in the order in which they are addressed in the applicant's submissions rather than the order in which they were addressed in the cross-examination. In dealing with these matters individually, I am not overlooking the requirement to consider their cumulative effect: MFA at [95]. However, in order to undertake that task, it is necessary first to explain each point in turn.
2. The first two points concern the evidence about going under the house. First, the applicant pointed to a discrepancy as to who went first. In her evidence, the complainant said she went under the house and the applicant followed her. In her statement she said she remembered that she followed him under the house. Secondly, in her statement she said he "lured" her there whereas she did not use that word in her evidence. The Crown submitted that the differences were "peripheral detail" and that the jury was entitled to conclude that it did not adversely affect the complainant's credit. I agree. All inconsistencies are not equal. The important details - those witnesses tend to be sure of - are the things that hurt or shock or betray a person's trust. Feelings and physical sensations. It is not uncommon for witnesses to give inconsistent accounts as to matters sitting at the periphery of such details. I would regard the memory of who entered the space first to be peripheral. The fact that the complainant did not use the word "lure" in her evidence adds nothing.
3. The third point concerned the applicant's evidence about her underpants. In her statement to police, the complainant said "I remember that I had no underwear (I am not sure why, but I remember that I didn't have them on)" whereas in her evidence she said that the applicant "pulled [her] panties down". It is not clear whether the complainant accepted during cross-examination that there was any inconsistency. The relevant exchange included a question from the judge in which his Honour was evidently seeking to explain a question asked by the cross-examiner but which unfortunately produced an ambiguous answer. The cross-examiner asked, after showing the complainant the relevant part of her statement, "And you agree that is contrary to your evidence before the Court today?" No answer is recorded. The judge then asked: "HIS HONOUR: Ms [name], do you remember being asked about the second line at this stage that is the reference to wearing no underwear and you are being asked whether that is inconsistent with what you said earlier today?"
4. She responded "yes" but it is not clear what that indicated. She may have been answering the first part of the question ("do you remember being asked about the second line?") or else simply acknowledging that she understood the judge's clarification. However, the cross-examiner then moved on to a different topic.
5. In any event, the two pieces of evidence are not necessarily inconsistent. In her statement, she appears to have been describing a recollection of a moment when she was already lying on the towel and was aware of having no underpants on. At the time of her statement, she said she could not remember why. It is not inconsistent for her to have later recalled that the applicant had removed her underpants. Further, while it is perhaps not a peripheral detail, I do not think it is particularly significant if that was wrong. One way or another, she described ending up without underpants. On either version she was not wearing underpants at the time when the sexual assault occurred and the jury plainly accepted that.
6. The fourth point concerned the complainant's evidence as to when she was kissed. The cross-examiner showed her part of her statement to police where she said "Uncle [name] came and started to kiss me … he then lay on top of me". He asked "Do you agree that the evidence you have given to the Court today is that he laid (sic) on top of you before he started kissing your cheek?" She agreed. The cross-examiner left it at that. Perhaps that was wise. However, a glib exchange which goes no further than to identify an inconsistency between two statements leaves no basis for assessing its significance other than the inconsistency itself. In my assessment, the inconsistency is not significant. It is not uncommon for witnesses to be certain as to acts or sensations they recall but less certain as to the order in which they occurred. The significant aspect of the evidence is the recollection of a kiss, which the complainant described in plausible terms.
7. The fifth point was that the complainant said in evidence that the applicant played with her hair as he lay on top of her whereas that was not mentioned in her police statement. As submitted by the Crown, the addition of detail in oral evidence is not an inconsistency. The complainant explained that she remembered more detail about the incident as the trial date drew closer. The additional detail is not inherently unlikely, in circumstances where the position she described had him lying on top of her with his right arm on the ground. In that position, his hand would have been just next to her hair. Nor is it the kind of detail that makes it particularly surprising that it was not included in her statement.
8. The sixth point was whether there was penetration. Obviously, that is an important issue. However, upon analysis, the complainant's accounts had a coherence that was actually quite compelling. To the extent that there was any inconsistency between the evidence at the trial and what she said in her statement to police, it is readily resolved.
9. In the passage of the statement the witness was shown, she said: "I think he removed his pants and he tried to put his penis into my vagina; I am not sure if he was successful I think I was bleeding slightly." (emphasis added)
10. In her evidence-in-chief (outlined above), the complainant described a degree of penetration but it was not her evidence that the applicant inserted his penis wholly into her vagina. The appearance of inconsistency comes from the fact that police evidently took her statement to support only a charge of attempt. However, other aspects of her description of the incident supported the inference that there was some penetration. Unsurprisingly, upon conferring with her, the prosecutor formed the view that penetration could be established and should be charged. Nothing in the complainant's statement was inconsistent with penetration; that is, she did not exclude it, and her description of what she felt and saw afterwards supported it.
11. The final point concerns whether the complainant saw blood on her vagina when she got in the bath. The applicant points to a discrepancy between her statement, where she said "I think I was bleeding slightly" and her oral evidence where she conceded that she had not mentioned seeing blood in her examination-in-chief. The Crown submitted that this aspect of the evidence supports the Crown case by suggesting there was a degree of penetration. I agree. Moreover, the Crown emphasised that at no point did the complainant say she observed bleeding, only that she thought she was bleeding. Regardless of whether there was blood, the complainant described at numerous points how her vagina and the area around it was "sore", "burning and stinging" and "red". Those descriptions gave the allegation of penetration verisimilitude.
12. During the exchanges about inconsistencies in the cross-examination, the complainant explained that she could remember "more details getting closer to this day" (apparently a reference to the trial date) whereas when she made her statement in 2014 she was "very nervous" and "didn't feel comfortable disclosing to total strangers these finer details". The jury was able to assess that explanation.
13. I am not satisfied that the inconsistencies about which the complainant was cross-examined undermine her reliability as a witness to such an extent as to warrant interfering with the jury's verdict. With no disrespect to the cross-examiner, who could only work with what he had, the inconsistencies concerning the event itself were inconsequential. I can put the matter no better than it was put by the Crown Prosecutor in her closing address to the jury. She said: "You may think that traumatic events like that in her life would stick in her memory and be etched in her memory forever. And when I say that, I'm talking about the details of actually what happened to her. So I'm talking about the details of the accused, as she says, touching her vagina, kissing her under the house, and then penetrating her vagina with his penis. The actual details of what happened. The feeling of being made to feel special by the accused. She's given evidence to you about that, that she felt special, that she liked the attention. They're the things that I say would be etched in her memory forever."
14. It was a forceful submission and one that neatly captures the reason the submissions in support of the conviction appeal were unpersuasive in the present case.

Complaint and corroboration

1. The complainant said that, about a week or two later, she and her parents and the applicant were visiting a friend of the complainant's father named Bernie. Her father and Bernie left, leaving the complainant, her mother and the applicant in the house. The complainant was angry about what had happened and she told her mother "Uncle [name] tried to have sex with me". Her mother responded "go into Bernie's room, you dirty little girl, and stop telling lies". It was the complainant's recollection that the applicant was within earshot when that conversation happened and that he "denied it flat out". The complainant said she went to her father's friend's room as told and that she cried. She was angry and upset that she wasn't believed by her own mother and angry at her uncle for what he had done.
2. The complainant was asked how old she was when she told her mother. She said "I think I was about 9 or 10 at the time".
3. Nothing more was said about the incident until many years later, about 5 years before the complainant gave evidence at the trial. The complainant fixed that date as being either shortly before or shortly after the death of her fiancé. She decided to tell her mother about "what [her uncle] had done". She told her mother about the two incidents. She said that she did not go into great detail, she just told her mother that she had been "sexually assaulted by him".
4. The applicant identified a number of alleged inconsistencies or anomalies between that evidence and the evidence of other witnesses. This issue can be addressed briefly; the points made have not generated any doubt in my mind as to the veracity or reliability of the complainant's account of the offences. On the contrary, as submitted by the Crown, the complaint evidence, viewed as a whole, tends to support the complainant's account.
5. Perhaps most significantly, the evidence of the complainant's mother confirmed the complainant's evidence about being observed having a bath at an unusual time of day. That is powerful corroboration of the complainant's evidence. The complainant said her vagina was still sore and still hurting when she went inside so she ran herself a bath and when she sat down in the bath she instantly felt relief from the warm water. It was a description of experiences and sensations that had a ring of truth.
6. The complainant's father also gave evidence. It may be accepted that there were inconsistencies between the evidence of the complainant, her mother and her father, but they are insignificant. What the evidence taken as a whole establishes is that the complainant told her mother about being sexually assaulted by the applicant. Her mother recalled a conversation on the day of the bath; she did not recall any mention of sexual assault but the description was consistent with the complainant's account ("I remember her saying to me that she had been at the back of the house playing and [the applicant] dragged her under the house and she said that he was laying (sic) on top of her and she couldn't get out from under him and she had to struggle to get away from him and then she came straight up - up to the kitchen to tell me").
7. The complainant recalled the conversation later at Bernie's but thought she had not said anything on the day of the bath. The mother did not recall the conversation at Bernie's. The father recalled being told by the mother that the complainant had said the applicant "molested" her. He said: "And I questioned [the complainant] about the so-called occurrence but she couldn't tell me any date or any time. So I - I dismissed it and I thought at that time [the complainant] was fantasising about all sorts of stuff and I thought 'oh just another one of her fantasies'". He did not place that conversation at any particular time.
8. In my view, that evidence establishes that, at the time of the incident or shortly after, the complainant raised the matter with her parents and was disbelieved. Their reaction is irrelevant; the confirmation that she complained is probative.
9. For completeness, I note that the accused did not give evidence at the trial, but relied on certain matters that were raised in an electronically recorded interview (ERISP). He denied all of the allegations, but accepted that he had visited the house in suburb 1 "a couple of times". He said he could not recall the house at suburb 2 but conceded that he may have also visited that property. The evidence of the complainant's parents confirmed that the applicant did visit the family at that property.

Evidence as to dates

1. As already explained, the Crown had to prove beyond reasonable doubt that the complainant was under 10 at the time of the assault.
2. Documentary evidence was tendered by the Crown going to the issue of dates including the complainant's birth certificate, an age chart (Exhibit C) and an incomplete series of school reports dated between 1978 and 1982. As already noted, the complainant attended a number of schools during that time. The ones relevant to count 3A are referred to as schools A and B.
3. The chronology established by those documents and uncontested evidence may be summarised as follows: Calendar year School Report Grade Complainant's age after January Applicant's age until November 1977 School A Kindergarten 5 13 1978 School A Year 1 6 14 Ms Brown 1979 School A Year 2 7 15 Ms Brown 1980 Unclear - no report tendered Year 3 8 16 1981 First report (so far as evidence shows) from school B. Shows at school B by the end of the year Year 4 9 17 1982 Started the year at school B Year 5 10 18

1. I have already referred to the Crown's unsuccessful application at the conclusion of the evidence-in-chief for the complainant to be allowed to revive her memory from her statement. After the cross-examination had commenced, the Crown Prosecutor made a belated application under s 38 of the Evidence Act for leave to cross-examine the complainant on the basis that her evidence as to dates was unfavourable to the Crown. At the point when the application was made, the cross-examiner had asked only one question bearing on the issue of age and timing, as follows: "Q. The evidence you've already given is that you were 9 or 10 years old at the time that you say the under the house incident occurred, correct? A. Yes."
2. It may be noted that the witness's answer did not in terms confirm the correctness of that evidence; only that it was the evidence she had given.
3. The trial judge allowed the application, for the reasons published in his Honour's decision R v RA (No 1) [2019] NSWDC 375. Leave was given to question the complainant as to the following: 1. Whether she was in kindergarten, year 1 or year 2 at the time of the first incident; and 2. What school she was attending at the time of the second incident.
4. In granting the application, the trial judge accepted that counsel for the accused should be allowed to complete his cross-examination before the s 38 questioning was undertaken by the Crown and that he should have the right to ask additional questions after the conclusion of the Crown's additional questioning: at [34] of the judgment.
5. In light of the importance of this issue, it is appropriate to set out the further evidence adduced by the Crown in full: "Q. If I can take you also just back to your evidence in relation to the incident where you were under the house, so the second incident; in your evidence today in relation to that incident you said that you thought you were about nine or ten years old, do you remember that? A. Yes. Q. And you said that you thought you were in about year 4 or 5? A. Yes. Q. Do you remember when this incident happened under the house, do you remember what school you were at? A. I can't remember if I was still going to [school A] because at some point during one year of going to [school A] there was an issue and I got pulled out of that school and started at [school B]. So it could have been in the same year that I actually swapped schools so at that time. So it could have been [school A] and then go to [school B]. Q. If you can have a look at paragraph 27 of your statement that you have got in front of you? A. Yep. Q. If you can have a look there you can see there you say: 'My uncle [name] came to visit us again', you're talking about at the [suburb 2] house? A. Yes. Q. 'This was the first time that my uncle had been to our new house'? A. Yep. Q. 'I think it was warm weather and I think my ear surgery had been done. I was still at [school A].' Do you see that? A. Yes I would have still been at [school A] and then soon after I had my ear surgery done because of the bullying I had suffered as a child at that school, mum and dad decided to pull me out of there because of the bullying and then send me to [school A] - I mean to [school B], sorry. Q. Yes to [school B], yes? A. Yes. Q. If you have a look at exhibit E, again the school reports, you will see that the first school report that we have, [school B], is 1981; can you see that? A. Yes. Q. And according to your schooling records you were in year 4 in 1981? A. Yes. Q. And you were nine? A. Yes. Q. And you wouldn't have turned ten, would you, until the following year in January. A. Correct. Q. So in the whole time of year 4, whether you were at [school A or school B] which is the year you say you may have changed schools, you were nine years old, weren't you? A. Yes - HEALY: I object to that, the parenthetical references to that in that question which gives evidence that the witness has not given which is the year you say you may have changed schools. She hasn't said any such thing. She said she changed schools in the middle of the year. HIS HONOUR: Yes but she has accepted that she was at [school A] when the alleged incident occurred which is all you really need, isn't it? CROWN PROSECUTOR: Yes. HIS HONOUR: Do you withdraw the last question? CROWN PROSECUTOR: Yes. HIS HONOUR: I reject the question."
6. There was then further cross-examination on that topic as follows: "Q. I'm asking you now about timings under the house incident. Your memory, you gave sworn evidence in Court today earlier is that you were about nine or ten when they occurred, correct? A. Yes. Q. You have got the statement in front of you and I take you to paragraph 23 on page 4, you've got that in front of you? A. Yes. Q. It said that after the alleged bush incident at [suburb 1], 'I continued on as normal and continued on at [school A]. I know at some point in time my baby brother [name] was born.' Do you see that there? A. Yes. Q. I won't read to you all the words of paragraph 24, but in substance you say that in turn again after that you moved from [suburb 1] to [suburb 2]? A. Yes. Q. And you say then after that that you underwent surgery, as you put it, to have your ears pinned back at [a hospital], and if you need a prompt it's paragraph 26 on page 5? A. Yes, I just found it. Yes. Q. And in paragraph 27 you say you think your ear surgery had been done and the weather was warm when [the applicant] came to visit again? A. Yes. Q. You remember being pulled out of [school A] and moved to [school B] at some stage in a middle of the year; I'm not saying it was during the winter months, but at some stage during the middle of a school year, correct? A. I'm not sure if was the middle of the school year, or I don't know what - part time of the year, whether it was early, in the first six months, or the last six months after June/July. At some point during that time, that year, I was transferred from [school A] to [school B]. Q. Just so we're very clear about what your evidence is, under that heading, it wasn't on the first day of school, in a January, that you started at [school B], correct? A. I can't remember the exact date of when I started [school B], no. Q. But you remember there was some incident at, or series of incidents, at [school A] that led to you being pulled out? A. Yes. Q. And you don't have any year 3 report, correct? A. Correct, yes. Q. And all we know for sure, based on the documents, is that by the end of year 4 you were certainly at [school B], correct? A. Yes. Q. And you were in year 4 in 1981, correct? A. Yes. Q. I'll put to you that the evidence that you gave earlier today was absolutely correct when you said, 'I think I was in around year 4/5', at the time of what you say was the second visit? A. Yes. Q. Is that right? A. Yes. Q. And if that is right, you were most likely at [school B] by that time, correct? A. Yes."
7. It is also relevant in this context to consider the evidence of the complainant's mother. She said that it was during 1981, when the complainant was in year 4 and aged 9, that she left school A to go to school B following an incident with the school principal. The complainant's father said there was a period of about six to eight months after they moved to suburb 2 when the complainant was still attending school A. The significant fact is that, while there was some confusion as to dates, the complainant confirmed under cross-examination by the prosecutor that she was still at school A when the incident occurred, as she had said in par 27 of her statement to police. Her recollection as to what school she was attending at the time is, in my assessment, a more compelling pinpoint than a reference to what year she was in. The Crown's cross-examination provided a solid foundation for the jury to find the offence proved.
8. The importance of the dates was emphasised to the jury by the Crown Prosecutor, defence counsel and the trial judge. Both counsel addressed the relevant evidence in detail. On the first day of the summing up, the trial judge directed the jury as follows: "it is agreed between the parties that time in relation to this trial is of the essence. That is, that you must be satisfied beyond reasonable doubt that the acts alleged took place within the timeframe referred to on the indictment and you will see those are referred again on the elements document."
9. On the second day of summing up, the trial judge returned to the issue of timing: "In this trial the parties have agreed that the time of the alleged offending is of the essence. That is, you must be satisfied in respect of each count that the relevant alleged offending took place within the time period specified in the indictment … That is, you must be satisfied beyond reasonable doubt the complainant was under the age of ten years when the so-called under the house incident took place …"
10. As submitted by the Crown, it was open to the jury to accept the complainant's evidence adopting what she said to police in her 2014 statement about still being at school A when the offence in count 3A was committed. That is the very issue they were directed they had to determine. The fact that they acquitted on count 1 indicates that careful attention was paid to the matters required to be proved.

Sentence

1. In relation to count 2, the applicant was convicted without any further penalty pursuant to s 10A of the Crimes (Sentencing Procedure) Act 1999 (NSW). In relation to count 3A, he was sentenced to a term of imprisonment for five years with a non-parole period of three years commencing on 28 March 2019 and expiring on 27 March 2022 and a balance of term of two years expiring on 27 March 2024.
2. The sentence appeal is confined to the sentence imposed for the carnal knowledge offence. The maximum penalty for that offence was imprisonment for life.
3. The applicant relied on three grounds of appeal: "1. The sentencing judge erred in assessing the objective seriousness of the offence. 2. The sentencing judge erred in finding that the complainant suffered substantially from the applicant's conduct. 3. The sentence imposed was manifestly excessive."
4. I am not persuaded that there is any patent error in the sentencing judgment. However, I have reached the conclusion that the sentence was manifestly excessive. My reasons for those conclusions are as follows.

Ground 1: objective seriousness

1. In relation to ground 1, the applicant submitted that there were two matters of significance: the duration of the sexual act and the nature of the sexual act. For the purposes of the proceedings on sentence, the Crown prepared a summary of the facts. The applicant agreed with that summary except he submitted that for the purpose of the sentencing task the findings should include a finding that the applicant's penis was in the complainant's vagina "for a short time".
2. The sentencing judge concluded that the evidence did not enable him to make a finding on that matter: R v RA (No 2) [2019] NSWDC 463 at [24]. The complainant could not remember how long the applicant's penis had been inside her. When asked to choose between either a "short" or a "long" time, she said that it was "a short time". The applicant submits that this evidence as to the duration of the sexual act should have been accepted by the primary judge as a factor that reduced the objective seriousness of the offending because there was no conflicting evidence. In addition, the applicant submitted that there was only "partial penetration and no evidence of ejaculation" and that "when the complainant said to stop, the applicant ceased".
3. The last submission is not supported by the evidence. The complainant's evidence was that she asked the applicant to stop and pushed on his chest, but he did not stop. It was only when she repeated that act and pushed even harder on his chest that he finally removed himself from on top of her.
4. There is no merit in the complaint that the judge should have found that penetration occurred for only a short time and that this should have reduced the objective seriousness of the offence. Having regard to the complainant's limited evidence on the issue, his Honour was right to say that the evidence did not permit a finding to be made on that issue. It is at least clear that the offence lasted long enough for the complainant to push the applicant away from her twice and for him to say the things she described. A finding that the offence lasted for "a short time" would have had no meaningful content.
5. Further, as submitted by the Crown, the extent to which the seriousness of sexual offences can be differentiated according to a temporal component of penetration may be doubted. I accept that it has been necessary in decisions of this Court to descend to minute comparisons for the purpose of assessing the objective seriousness of sexual offences. The Crown referred in this context to the decision of this Court in R v AJP (2004) 150 A Crim R 575; [2004] NSWCCA 434 where Simpson J (as her Honour then was) stated that in determining the objective seriousness of a sexual offence, "over what period of time" the offence occurred is a relevant factor: at [25]. But here the issue is one that is elusive and unhelpful in determining the measure of seriousness. There was penetration of a young girl that caused redness and pain.
6. As to the nature of the sexual act, counsel for the applicant submitted that the trial judge incorrectly considered that the offence of carnal knowledge could be established by either penile/vaginal penetration or digital/vaginal penetration. That was said to entail error because (contrary to a submission put on behalf of the applicant at sentence) the offence of carnal knowledge is only established by penile/vaginal intercourse. I am not persuaded that the trial judge did fall into that error. In the sentencing judgment, his Honour listed the matters relied upon by the Crown as being relevant to objective seriousness. They included [24(b)] as follows: "the nature of the offence, particularly the sexual intercourse as submitted by the Crown. Penile/vaginal penetration is an objectively serious form of sexual intercourse. Whilst that is plainly true I will return to consider that matter after considering the Offender's submissions."
7. His Honour returned to the issue at [27], saying: "The other significant submission made on behalf of the Offender is that the offence of carnal knowledge is not as expansive as the modern offence of sexual intercourse. The offence of carnal knowledge requires penetration, whilst the modern offence of sexual intercourse covers a wider range of acts. I agree with that submission and it bears upon the findings of objective seriousness for the offences charged, that is the offending is established by specific acts rather than a possible number of acts which are to be taken into account in assessing the objective seriousness."
8. It is by no means clear from those remarks that his Honour fell into the error of including digital penetration in the range of conduct that would constitute carnal knowledge. As noted by the Crown, the judge had directed the jury in the elements document that carnal knowledge meant "any degree of penile penetration of the labia".
9. Further, there is nothing in the sentencing judgment to suggest that the judge proceeded on the basis that the nature of the penetration made the offence more serious. His Honour assessed the objective gravity of the offending to be "just below the mid-range": at [28]. That assessment has not been shown to be erroneous. I would dismiss ground 1.

Ground 2: complainant's suffering

1. Ground 2 in the appeal alleges that "the sentencing judge erred in finding that the complainant suffered substantially from the applicant's conduct". A Victim Impact Statement was tendered without objection during the sentencing proceedings. It set out the impact the offending conduct has had on the complainant's life and her ability to find stable and safe relationships. The applicant now takes issue with the following remarks in the sentencing judgment: "[19] She has been battling with the ongoing trauma for some time which has impacted upon her relationships and marriages. She has been married twice and the subject of marital rape in the second marriage as well as verbal abuse and physical violence. [20] She is presently a single parent of four children to four different fathers. One of the children has a disability. Since first reporting the incident the victim has been the subject of pressure by family members including her father to abandon the charges against the Offender. She feels ostracised by her family adding to her trauma. She is undergoing therapy for post-traumatic stress disorder with a clinical psychologist and I expect that may continue. It is plain from the victim impact statement that the complainant suffered substantially from the Offender's conduct. … [44] …The harm done to the victim was significant and continues to affect her." (emphasis in the applicant's written submissions)
2. The applicant submits that it was not open for the trial judge to conclude that the offending conduct caused the victim substantial suffering for the following reasons: 1. The Crown never made a submission that the offending conduct caused the victim substantial suffering. In other words, the Crown did not raise s 21A(2)(g) of the Crimes (Sentencing Procedure) Act 1999 (NSW), which says that "substantial" suffering by a victim is an aggravating factor in sentencing. 2. Defence counsel never conceded that the offending conduct caused the victim substantial suffering. 3. The trial judge did not raise s 21A(2)(g) with the parties or request written submissions on the point at any stage of the sentencing proceedings. The word "substantial" was mentioned for the first time in the sentencing judgment. This was a denial of procedural fairness.
3. In combination, the applicant submits that by finding the suffering was "substantial" the trial judge "elevated the level of harm above that which the Crown advocated for".
4. In addition, the applicant submits that parts of the Victim Impact Statement are objectionable because the complainant's post-traumatic stress disorder "could have been triggered by those other events rather than the incident subject of the trial". However, the applicant concedes that no submissions were made during sentencing to limit the use to be made of the VIS. It is not appropriate to permit the case to be reformulated in that way for the first time on appeal.
5. I do not think there is any merit in this ground. The judge expressly said that there were no aggravating factors apart from the fact that the offence occurred in (under) the complainant's home. As submitted by the Crown, the use of the word "substantially" was made in the context of the judge's discussions of the Victim Impact Statement and should be understood as nothing more than an acknowledgment of the content of that statement. It should not be taken to displace the express statement concerning the aggravating factors taken into account (or not). I would dismiss ground 2.

Ground 3: Manifestly excessive sentence

1. Ground 3 of the sentence appeal is that the sentence imposed was manifestly excessive. The applicant relied on extensive material in the form of statistics, case details and summaries of so-called comparable cases. That material concerned cases involving offences of carnal knowledge contrary to s 67 but also material concerning the offence that in effect replaced carnal knowledge, the offence of sexual intercourse with a child under 10 contrary to s 66A (the penalty for which has been amended a number of times).
2. The Crown submitted that that material affords limited assistance. So much may be accepted. As to the statistics and case details concerning sentences imposed for offences contrary to s 67, one difficulty is that the section was repealed in 1985. There is accordingly little relevant information in the JIRS statistics. The applicant relied on three cases recorded on JIRS for a s 67 offence. In two of those, a suspended sentence of 2 years was imposed. A suspended sentence was not an option available to the sentencing judge.
3. The third was the case of SM v R [2014] NSWCCA 137. That was a case involving persistent offending over a 6-year period while the offender was aged between 14 and 20 years and the victim was aged between 5 and 11 years. Unsurprisingly, a substantial sentence was imposed, being a term of imprisonment for 7 years and 9 months with a non-parole period of 3 years and 9 months. That case is not comparable with the present case.
4. The applicant also relied on three further cases of offences contrary to s 67 which are not recorded on JIRS. Again, however, those cases are of limited assistance, for the reason identified by the trial judge. His Honour noted that, pursuant to s 25AA(1) of the Crimes (Sentencing Procedure) Act, a court must sentence an offender for a child sexual offence in accordance with the sentencing patterns and practices at the time of sentencing, not at the time of the offence. Two of the decisions relied upon by the applicant were sentences imposed in 1994 and 1996 and accordingly did not indicate current sentencing patterns.
5. The third was the case of RJP v R [2006] NSWCCA 149. As submitted by the Crown, minimal assistance can be gained from that case because the circumstances are so different from the present. In particular, the offender in that case pleaded guilty. Further, the case involved multiple offences.
6. The Crown submitted that, having regard to those difficulties and the small number of decisions available for s 67 offences, it is difficult to regard the decisions relied upon as providing a "proper yardstick" against which to examine a sentence. The Crown relied in that context on the decision of this Court in BT v R [2019] NSWCCA 147 at [45] where Hidden AJ reached precisely that conclusion (Bathurst CJ and Ierace J agreeing at [1] and [2]).
7. For the reasons submitted by the Crown, the other statistics and case summaries relied upon by the applicant are even less helpful. Section 66A is framed differently from s 67 in that it contemplates a broader definition of sexual intercourse and is not concerned with the gender of the child. Further, the maximum penalty for that offence has changed twice. When the section was originally inserted, the maximum penalty was imprisonment for 20 years. That was increased in 2003 to 25 years and a standard non-parole period of 15 years was prescribed. In 2009, the maximum penalty was increased again, to imprisonment for life (with the standard non-parole period remaining at 15 years).
8. Sentences imposed for offences contrary to s 66A at a time when it carried a different maximum penalty provide no relevant guidance: BT at [47]. Those involving a standard non-parole period which were decided before the decision of the High Court in Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 are equally unhelpful, as indeed are those decided even after Muldrock in cases where there was a standard non-parole period.
9. In the result, the Crown submitted that the Court should attach little significance to the statistics and comparative cases concerning sentences for offences with a different maximum penalty or which involved a standard non-parole period. Subject to one qualification, I agree. The qualification is that I would respectfully adopt the following remarks of Hamill J relied upon by the applicant from his Honour's judgment in Paul Campbell v R [2018] NSWCCA 87. After noting that it was unnecessary to examine the comparative cases in great detail because the parties had agreed that each case necessarily turns on its own facts, his Honour said at [38]: "However, the comparable cases do demonstrate that there is considerable flexibility in sentencing young offenders even where, as here, had the sexual offending been committed by an adult an extremely long sentence of full-time imprisonment would be imposed. The comparable cases included examples of serious sexual offending which did not result in the imposition of full-time custodial sentences. In other cases, sentences of full-time imprisonment imposed on young offenders resulted in successful appeals and resentencing whereby the applicant was immediately or soon released from custody." (citations omitted)
10. Importantly, it does not follow from the foregoing conclusions that, because the applicant cannot demonstrate a clear range by reference to statistics or comparable cases, the ground of manifest excess must fail. The Court must do the best it can on the information available to determine whether the sentence imposed was outside the proper range.
11. The trial judge found the objective seriousness of the offence to be "just below the mid-range". As to the applicant's subjective circumstances, the trial judge made a number of findings favourable to the applicant. He accepted the opinion of a corrective services psychologist that the applicant "would be deemed a low risk of sexual reoffending": at [30]. He referred to the applicant's difficult upbringing, accepting that his father was "a controlling and violent man": at [33]. He also accepted favourable character references tendered on behalf of the applicant. He noted that the applicant had been a person of good character since the time of the offences, a period of almost 40 years. On that basis, he found that the risk of reoffending was low and the prospects of rehabilitation high. He did not regard the applicant to be a risk to the community. Finally, his Honour noted that at the time of the offending the applicant was under the age of 18.
12. The applicant's age at the time of the offence is a significant factor in the present case. At the beginning of the range specified in the indictment, the applicant was aged only 16 years and 10 months. The applicant submitted that, while the trial judge found that the objective seriousness of the offence was mitigated by the fact that the applicant had less moral culpability because he was "a juvenile who was immature", that finding was not reflected in the sentence. I agree.
13. In my view, the sentence imposed of a period of imprisonment for 5 years was outside the upper range. It was a very stern sentence for an offender who may have been only 16 or 17 at the time of the offence. In my view, notwithstanding the seriousness of the offence, it was too stern. I would impose a sentence of imprisonment for 4 years. I would adopt the finding of the sentencing judge as to special circumstances and maintain the ratio of the non-parole period to the balance of term adopted by his Honour of 60%. On that basis, with slight rounding, I propose a non-parole period of 2 years and 5 months.
14. For those reasons, I propose the following orders: 1. That leave to appeal against conviction and sentence be granted. 2. That the appeal against conviction be dismissed. 3. That the appeal against sentence be allowed. 4. That the sentence imposed at first instance be quashed and in substitution therefor that the applicant be sentenced to a term of imprisonment with a non-parole period of 2 years and 5 months commencing on 28 March 2019 and expiring on 27 August 2021 and a balance of term of 1 year and 7 months expiring on 27 March 2023.
15. BUTTON J: With regard to the appeal against conviction, I agree with McCallum JA.
16. In particular, although there was a real question in the trial about the ability of the Crown to prove that the carnal knowledge occurred before the complainant turned 10 on 20 January 1982, having reviewed the evidence and final addresses for myself, I consider that the jury was entitled to resolve that controversy in favour of the Crown, to the criminal standard.
17. I also agree with her Honour with regard to the appeal against sentence.
18. IERACE J: I also agree with McCallum JA.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 23 December 2020