Criminal Law - Appeal and new trial - Verdict unreasonable or insupportable having regard to evidence - Appeal dismissed - Appellant submits evidence contradicts complainant's testimony - Submits jury could not have reconciled the two accounts - Submits insufficient evidence to uphold finding of intention to engage in unlawful sexual act - Open to jury to be satisfied of guilt on complainant's credibility - Jury entitled to conclude the appellant was grooming the complainant for the purposes of procuring a sexual act - Grounds dismissed.

Criminal Law - Appeal and new trial - Miscarriage of justice - Particular circumstances not amounting to miscarriage - Misdirection or non-direction - Appellant submits trial judge misdirected jury by conflating intention to procure with exchange of indecent images - Alternative verdict should have arisen - Submits errors regarding use of tendency evidence - No possibility of alternative verdict arising - Tendency evidence sufficiently explained - No miscarriage of justice arsing - Grounds dismissed.

Criminal Law - Appeal and new trial - Particular grounds of appeal - Misdirection and non-direction - Consideration of summing up as a whole - Appellant submits summing up lacked neutrality - Undue emphasis on State's case - Nothing in structure, tone or emphasis lacking neutrality - Trial judge did not reveal personal thoughts in summing up - Jury warned to ignore anything that could be interpreted as such - Ground without merit - Ground dismissed.

Criminal Law - Appeal and new trial - Particular grounds of appeal - Conduct of defence counsel - Appellant submits counsel failed to challenge key aspects of State's case in cross-examination - Submits counsel failed to address key exculpatory evidence in closing submissions - Submissions demonstrate lack of appreciation of the purpose of cross-examination - Appellant's counsel an experienced trial lawyer - Unable to conclude serious errors or omissions - Ground dismissed.

Criminal Law - Appeal and new trial - Appeal against sentence - Grounds for interference - Sentence manifestly excessive or inadequate - Appellant submits sentence disproportionate to comparable cases - Submits trial judge did not properly consider mitigating and pre-sentencing matters - Must establish that the sentence was unreasonable or plainly unjust - Comparative sentencing data of no use given unique combination of circumstances - Regard the sentence as lenient and within wide sentencing discretion - Total sentence not manifestly excessive - Ground dismissed.

DPP v Pearce (2016) 28 Tas R 1, House v King (1936) 55 CLR 499, Majok v The Queen [2015] NSWCCA 160, applied.

Aliano v Tasmania [2025] TASCCA 4, Anderson v Tasmania [2020] TASCCA 11, Riley v Tasmania [2020] TASCCA 1, IMM v The Queen [2016] HCA 14; (2016) 257 CLR 300, James v The Queen [2014] HCA 6, considered.

Respondent: Office Director of Public Prosecutions

Judgment Number: [2025] TASCCA 14

1. I have had the opportunity to read the reasons of Estcourt J for which I am much obliged. Those reasons set out the facts in this matter which I gratefully adopt. I offer the following additional observations on ground 1 but otherwise respectfully endorse the reasons of Estcourt J with whom I am in agreement, and I would join in the orders he proposes.
2. Before turning to ground 1, I note that Mr Barns SC and his junior, Mr Ashby acted for the appellant only in respect of ground 1 of the appeal. The applicant acted for himself on the balance of the appeal.
3. The notice of appeal was amended at the hearing by the amendment of ground 1, the deletion of what was ground 4 and the addition of new grounds 4, 5, 6 and 7. The new ground 7 was the old ground 4. The re-numbering of ground 4 of the original grounds of appeal as new ground 7 and the addition of new grounds 4, 5 and 6 reflects the order adopted in the written submissions filed by the appellant.
4. Ground 1 was amended, on the application of senior counsel, to read "The verdict of the jury in relation to count 3 of indecent assault was unreasonable or cannot be supported having regard to the evidence". The amendment did not alter the thrust of ground 1. The question for an appellate court must always be "whether ... upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty": R v Baden-Clay [2016] HCA 35, 258 CLR 308 per coram at [66].
5. Following the deletion of the original ground 4, new grounds 4, 5, 6 and 7 were added to the notice of appeal, on the application of the appellant acting in person to reflect the written submissions he had filed, in the following terms:

"4 His Honour erred in failing to properly instruct the jury on the limited use of tendency evidence.

1. His Honour erred in summing up by placing undue emphasis on the respondent's case.
2. The conduct of trial counsel resulted in a miscarriage of justice in relation to each count on the indictment in that, trial counsel failed to:

(a) adequately challenge key aspects of the prosecution's case through cross examination;

(b) adequately address key exculpatory evidence in closing submissions, and

(c) seek directions as to an alternative verdict available on the evidence in relation to count 4 on the indictment.

1. The cumulative effect of the sentences imposed was manifestly excessive in all the circumstances."
2. It is to be noted that, during the hearing of the appeal, the appellant sought to raise a failure by defence counsel at trial to adduce exculpatory evidence provided by the appellant but no affidavit evidence was filed in support of that contention, nor did the contention fall within the terms of the amended notice of appeal.

1. Ground 1 must be dismissed because the evidence relied on by the appellant as underpinning that ground is a gloss on the evidence given by the complainant in respect of count 3 on the indictment and did not preclude the jury from concluding beyond a reasonable doubt that the appellant was guilty of the offence charged. Further, the supplementary argument developed during the course of oral submissions that inconsistencies in the complainant's evidence made her testimony so unreliable that the jury must have entertained a reasonable doubt as to the accused's guilt in respect of count 3 must also be rejected because of ambiguities or obvious lacunae in the evidence of the complainant.
2. Count 3 charged the appellant with indecent assault contrary to s 127 of the Criminal Code in that he, at Bruny Island in Tasmania between on or about 21 September 2016 and on or about 20 September 2017, unlawfully and indecently assaulted the complainant by placing his hand under and on her breast. It is noted that no particular was pleaded as to what the complainant was wearing at the time of the alleged offending. That remained the case when further and better particulars of the 5 counts charged on the indictment were filed on 5 September 2024.
3. The appellant's argument on ground 1 as set out in the appellant's further written submissions prepared by appellate counsel filed on 25 June 2025 (and to be distinguished from the appellant's original written submissions filed on 27 February 2025) rest on the obligation of an appellate court to intervene on appeal when it considers that upon the whole of the evidence below it was not open for the jury to be satisfied beyond a reasonable doubt that the accused was guilty: M v The Queen [1994] HCA 63, 181 CLR 487. That contention was abandoned in the course of argument. For the reasons that follow that was a proper concession.
4. It was initially put that, in this case, the evidence precluded the jury being satisfied to the requisite standard in respect of count 3. Some comparison was drawn by the appellant with nature of the appeal in Pell v The Queen [2020] HCA 12, 268 CLR 123. The appellant relied upon evidence that it was said contradicted the complainant's evidence at trial in such a fundamental way that any jury acting rationally must have entertained a doubt as to the appellant's guilt on count 3.
5. Before canvassing the evidence upon which the appellant relied for that purpose, it is important to note that the complainant's evidence was accepted by the jury, and whilst this Court is required to conduct an independent review of the evidence below it is important to make full allowance for the advantage that the jury had in having seen and heard the complainant give evidence. Issues of credibility and reliability are matters for the jury: R v Baden-Clay per coram at [65]-[66].
6. Ground 1 proceeds on the basis that, because the complainant's evidence was that she was wearing bikinis at the time of the accused's alleged offending in respect of count 3, the verdict is unsafe because the accused's daughter's evidence was that the complainant only went out on the boat once. The photographic evidence at trial showed the complainant on the boat with the appellant. The complainant was wearing a hoodie and life vest, and she is not wearing bikinis in any of the photos. Thus, it is said, the verdict is unsafe if the complainant could not have been wearing bikinis at the material time and was in fact wearing a life jacket and a hoodie.
7. The evidence of the complainant was that she went out on a boat to catch fish and the appellant was the only adult on the boat at that time (T 74 lines 40-45). Other than the appellant and the complainant the complainant's sister was on the boat and perhaps another friend. The complainant and the others on the boat caught flathead and the appellant took photographs of them with the fish. The complainant said she was wearing bikinis on the boat but she was not sure if that was the same day. The complainant was leaning over the boat and the appellant placed her in a bear hug and his hands touched her breasts. She felt pressure from the appellant in touching her breasts, both of them, he was touching the front of them. The complainant was not sure at that time who was on the boat. It occurred when the boat was "on the shore".
8. There were important differences between the factual summary set out above and that proffered by the appellant is his further written submissions where the appellant summarised the complainant's evidence-in-chief at paragraph 12 (un-numbered page 5); where he describes the evidence-in-chief of the complainant in respect of the touching impeached by count 3 in the following terms: (page references are to the AB V2, italics added):

On the same boat she was wearing bikinis but she is not sure if that was the same day. The Appellant was taking photos.

She was leaning over the boat, wearing bikinis and the Applicant placed her in a bear hug and his hands touched her breasts.

She felt pressure. He was toughing the front 'of them'.

[The complainant] is shown the photo of the fish ... [discussed below] ... and agrees it isn't her, but is not sure about the circumstances (sic) photo was taken."

1. One can immediately see the important difference is that the appellant has attributed an additional piece of evidence to the complainant in her examination-in-chief, ie that she was wearing bikinis at the time of the alleged offending. It is that account upon which the appellant relied for the proposition that the offending occurred when the complainant was wearing bikinis.
2. The appellant then sought to build on that premise and rely upon the fact that the complainant was wearing bikinis at the material time in respect of the offending charged for the gravamen of ground 1. He contends that the offending couldn't have happened because on unchallenged evidence led at trial the complainant could not have been in bikinis at the material time.
3. However, the transcript reveals at AB V2 75 that this argument is that of a "straw man". The complainant in her evidence-in-chief never stated that she was in the course of swimming from the boat when the touching occurred, indeed she implies it occurred when she was not swimming and whilst on the boat. She was never asked in examination-in-chief what she was wearing at the time of the touching ie (italics added):

"Thank you . So you'd gone out on the boat to catch some fish, the three of you ?.. .. .. There could've been [name removed] too, ' cause if it - sounds very strange that it was just the three of us , but I can't remember exactly who else was on the boat. But Stuart was the only adult .

And what happened on the boat?... .. .We caught flathead and he took some pictures of us with the flathead. And then I'm not sure if it was the same day, but on the same boat we went swimming in bikinis.

And while you were wearing bikinis, was Mr Rainbird doing anything?... Watching. Taking photos.

So what happened when you went swimming?......I'm not a big fan of the water, so I'm not sure how much swimming I was actually doing , but I was on the boat majority of the time. And I can remember leaning over the edge of the boat and just having a bit of fun, and I had Stuart come from behind me and sort of act like he was going to push me in, but then retracted and pulled me back into sort of a bear hug. Like a - yeah, big bear hug. And his hands actually touched my breasts. Now, your - you've indicated hands . So was that both hands on both breasts?......Because it was a bear, sort of, embrace, I would suggest it was the both. I felt pressure on - enough to make me feel uncomfortable that it wasn't a mistake. What part of your breast was he touching with his hands?.....The front of them. And where his fingers stretched out , or where they clenched in a fist, do you remember?......It wouldn't have been in a fist. Describe the contact that you felt to your breast?.....It was quite significant pressure on just that one area of my breast, which was enough to make me feel uncomfortable and that it wasn't an innocent thing.

How long did that contact last? .. ... .I 'm not sure.

Was anyone else on the boat when that happened? ... .. .I'm not sure.

Sure. And the boat , was that stationary at the time?.. ... .Yes.

And was it moored, like, at a jetty? Or was it out - ?.. .. ..In the shore, so at the - yeah, just on the shore. So close to the beach?.. ... .Yep. Do you remember seeing anyone else around at the time? ... .. .I'm not sure. Did Mr Rainbird say anything to you when he made that contact?.. .. ..Not sure.

How did that make you feel?. .. .. .Uncomfortable. Did you tell anyone about it straight away?. .. ...No. Why not?.. .. ..Because I was worried about the fact that I could have - if I could, in quotes, 'take it the wrong way'.

HIS HONOUR: Is that a convenient time for a break, do you think -

1. The complainant gave evidence at trial. The only other direct evidence concerning the incident came from the appellant's daughter, who was called as a witness for the State. She gave evidence regarding the trip to Bruny Island, including the boat trip during which the alleged offence occurred. Photographic evidence taken by the daughter was tendered as exhibit P05.
2. There was a photo taken of the complainant with a fish. The photograph shows the complainant with a laterally striped long sleeve collarless shirt with shorts and a life jacket holding a fish with a "hoodie" tied around her waist. The complainant was not certain of the circumstances in which that photograph was taken. The photo shows the complainant in a very loose fitting life jacket with the brand name "Essential" on it. The appellant initially put some significant reliance on the premise that if the complainant was wearing a life jacket at the time of the alleged offending then the jury must have entertained a reasonable doubt as to guilt in respect of count 3. There is no evidence that the complainant wore a life jacket at all times. Indeed her evidence was that she could not remember. The evidence was that at the time of the offending the boat was stationary and close to the beach, and may have been moored. Indeed given the nature of the allegation in count 3 it is highly unlikely that the accused was operating the boat at the material time. There was no evidence that everyone on the boat wore life jackets when the boat was stationary or moored. Indeed, on an inspection of the photograph there is no apparent reason why the accused could not have committed the offence charged whilst the complainant was wearing the life jacket depicted in the photograph. Whilst the complainant was wearing a "hoodie" it was tied around her waist. It is unclear if the complainant was wearing a bikini under her top,
3. In cross-examination the complainant remembered fishing, and gave evidence that she had been out on the boat two or three times. She disagreed when it was put to her that at no time when she was on the boat she was in "just a bikini". However, that evidence takes the matter no further as she was not asked whether she was only in a bikini at the time of the alleged touching.
4. There was no direct evidence of what the complainant was wearing at the material time. There was no significant attempt in cross examination of the complainant to clarify that issue. There was no evidential basis for the proposition that the complainant was wearing a bikini at the time of the touching impeached by count 3.
5. During the course of argument ground 1 "evolved" and crystallised as a contention that the verdict in respect of count 3 was unsafe and unsatisfactory because of inconsistencies in the evidence of the complainant. However, when these inconsistencies were explored during the course of argument they merely highlighted ambiguities or lacunae in the evidence adduced at trial. There is no evidential basis for the argument advanced on ground 1 and it must be dismissed. The balance of the grounds must also be dismissed for the reasons published by Estcourt J.

1. The appellant appeals against his conviction and sentence imposed following trial by a jury for charges on indictment number 282/2022. To protect the identities of the complainants, I will refer to them by the pseudonyms used when the learned trial judge handed down his Comments on Passing Sentence. The counts on indictment number 282/2022 are as follows:

Count 1: Indecent assault contrary to s 127 of the Criminal Code Act 1924 (Tas) (the Code), in relation to Sally Gladstone.

Count 2: Grooming with intent to expose a young person to indecent material contrary to s 125D(3) of the Code in relation to Allison.

Count 3: Indecent assault contrary to s 127 of the Code in relation to Allison.

Count 4: Grooming with intent to procure a young person to engage in an unlawful sexual act contrary to s 125D(1) of the Code in relation to Jean Harrison.

Count 5: Involving a young person under the age of 18 years in the production of child exploitation material contrary to s 130 of the Code in relation to Jean Harrison.

1. The appellant was sentenced to a total term of imprisonment of three years and three months, one year of which was suspended for three years from release from custody. A minimum non-parole period of half of the operative sentence was applied.
2. The grounds of appeal are, in short:
   • That the verdict in relation to count 3 was unsafe and unsatisfactory.
   • That the verdict in relation to count 4 was unsafe and unsatisfactory.
   • That the learned trial judge erred in directing the jury as to the pathways to conviction in relation to count 4.
   • That the learned trial judge erred in his directions to the jury in relation to the use of tendency evidence.
   • That the learned trial judge erred in his summing up by placing undue emphasis on the respondent's case.
   • That the conduct of trial counsel resulted in a miscarriage of justice.
   • That the cumulative effect of the sentences imposed was manifestly excessive in all the circumstances.

1. The State's case at trial in relation to count 3 was as set out in the following paragraphs adapted from the written submissions of counsel for the State, Ms Avery.
2. Sally Gladstone, born in 2002, and Allison, born in 2001, were sisters. They resided in the same suburb as the appellant and were family friends. The appellant had a close relationship with their father and would spend time at their residence.
3. Jean Harrison, born in 2002, was an associate of the appellant's youngest daughter and went to school with her.
4. The complainants were aged between 11 and 17 years over the period covered by the indictment, namely November 2013 and May 2018.
5. The State called evidence from NN for a tendency purpose, as a piece of circumstantial evidence supporting the case against the appellant. The tendency evidence extended to the cross-admissibility of the evidence from each complainant.
6. It was the State's case that between on or about 24 November 2013 and on or about 23 November 2016, the appellant unlawfully and indecently assaulted Sally Gladstone by placing his hand on her upper thigh and touching her to the left breast.
7. The offending alleged by the State to have occurred in the complainant's family home, namely in the lounge room. The complainant was seated on the couch when the appellant sat down next to her. He put his arm around her shoulders before moving his arm down her body. He made contact to the right side of her breast (over or under clothing) and to her upper thigh (under clothing). This offending occurred whilst there were other persons present in the lounge room and when the appellant was socialising with the family.
8. The complainant gave evidence as to this count.

1. The State's case at trial in relation to count 2 was as set out in the following paragraphs adapted from the written submissions of counsel for the State.
2. It was the State's case that between on or about 21 September 2015 and 20 September 2017, the appellant communicated with Allison in a sexually explicit manner, with intent to expose her to indecent material.
3. The offending consisted of the appellant sending the complainant electronic messages and a photograph. The messages included enquiries about her clothing and her favourite sexual position, references to her bottom and masturbation. The photograph depicted the appellant's hand down his pants.
4. The complainant gave evidence at trial in relation to this count. Electronic messages, preceding the offending, were tendered on the trial. The complainant's father, Mr Gladstone, and two of the complainant's friends gave evidence of context and complaint.

1. The State's case at trial in relation to count 3 was as set out in the following paragraphs adapted from the written submissions of counsel for the State.
2. It was the State's case that between on or about 11 March 2016 and 20 September 2017, the appellant unlawfully and indecently assaulted Allison by placing his hand under and on her breasts.
3. The offending alleged by the State was said to have occurred on a boat, during a family holiday to Bruny Island. The appellant was joking around with her and placed her in a bear hug from behind. He then made contact to the front of her breasts.
4. The complainant gave evidence at trial in relation to this count and the appellant's daughter gave evidence relevant to opportunity.

1. The State's case at trial in relation to count 4 was as set out in the following paragraphs adapted from the written submissions of counsel for the State.
2. It was the State's case that between on or about 22 May 2016 and 21 May 2019, the appellant communicated with Jean Harrison in a sexually explicit manner, with intent to procure her to engage in an unlawful sexual act.
3. The offending consisted of the appellant sending the complainant electronic messages and photographs and videos. The messages included sexualised conversation, enquiries about the complainant's sex life and her appearance. The photographs and videos depicted the appellant's penis and masturbation.
4. The complainant gave evidence at trial in relation to this count.

1. The State's case at trial in relation to count 5 was as set out in the following paragraphs adapted from the written submissions of counsel for the State.
2. It was the State's case that between on or about 22 May 2016 and 21 May 2019, the appellant facilitated the involvement of Jean Harrison in the production of child exploitation material.
3. The offending comprised of photographs and videos, produced by the complainant upon the appellant's request and/or instruction. This material is the same material involved in count 4 on the indictment.
4. The complainant gave evidence at trial in relation to this count.

Ground 1 - that the verdict in relation to count 3 was unsafe and unsatisfactory

1. The law in relation to this ground of appeal was recently encapsulated by Pearce J in Aliano v Tasmania [2025] TASCCA 4 at [25]- [26] as follows:

"25 The assertion that a verdict is unsafe and unsatisfactory finds statutory expression in this State in the Criminal Code, s 402(1), which provides that the Court 'shall allow the appeal if it is of opinion that the verdict of the jury should be set aside on the ground that it is unreasonable, or cannot be supported having regard to the evidence.' The approach that an appellate court must take when addressing "the unreasonableness ground" was authoritatively stated in the joint reasons of Mason CJ, Deane, Dawson and Toohey JJ in M v The Queen [1994] HCA 63; 181 CLR 487 at 493. The court must ask itself:

"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".

1. As explained in M, and restated in MFA v The Queen [2002] HCA 53, 213 CLR 606, and in Pell v The Queen [2020] HCA 12, 268 CLR 123 at [43], the question does not depend on whether, as a matter of law, there is evidence to support the verdict, but rather whether the evidence required the jury, acting rationally, to have entertained a doubt as to the appellant's guilt. An appellate court must conduct an independent review of the evidence, but making full allowance for advantages enjoyed by the jury, including from having seen and heard the witnesses. Because of the central role of the jury in the administration of criminal justice, this Court is not to substitute trial by an appeal court for trial by jury: R v Baden-Clay [2016] HCA 35, 258 CLR 308 at [65]- [66]. The court must proceed on the basis that issues of credibility and reliability of oral testimony are matters primarily for the jury. The function of this Court is then to examine the record to see whether, notwithstanding that assessment, either by reason of other evidence, inconsistencies, discrepancies, or other inadequacy, the court is satisfied that the jury, acting rationally, ought nonetheless to have entertained a reasonable doubt as to proof of guilt: Pell at 145 [39]."
2. The appellant submits that evidence concerning the incident which came from the appellant's daughter (who was called as a witness for the State), regarding the trip to Bruny Island, including the boat trip during which the alleged offence occurred, including photographs taken by her which were tendered as Exhibit P05, contradicts key aspects of the complainant's account.
3. The appellant submits that his daughter's evidence reflected that there was only one boat trip involving the appellant and Allison and that the complainant was wearing a life jacket during that trip.
4. The appellant submits that the State did not challenge his daughter's evidence or suggest that she was mistaken in her account and no application was made to have her declared an unfavourable witness.
5. The appellant submits that the jury could not have rationally reconciled these two accounts, as:
   • The complainant's description of the alleged touching is implausible given her clothing covered her torso completely and she was wearing a life jacket.
   • The only other evidence in relation to these events contradicts the complainant's account and was not impugned by the State.
   • The photographic evidence corroborates an exculpatory version of events. (The appellant's case was that the alleged conduct did not occur).
6. The State submits that it was reasonably open for the jury to be satisfied of the appellant's guilt, that the complainant was a credible witness and her account was supported by the tendency evidence. It submits that it was open to conclude that the evidence of the appellant's daughter was not exculpatory and did not exclude the opportunity for the offending to have occurred.
7. The following summary of the complainant's evidence is taken from the written submissions of counsel for the State:

"40 The complainant gave evidence of an unlawful indecent assault perpetrated against her by the appellant (T 65-68 and 83-88). She was the only direct eyewitness to this charge.

1. She gave evidence that around the time she was communicating with the appellant online, they went on a trip to Bruny Island. She was about 15 or 16 years old (T 65).
2. She went out on a boat. The appellant was the only adult on the boat. She was unsure whether this was the same day they caught flathead and took pictures. They had been swimming in bikinis and the appellant was watching, taking photographs (T 66).
3. The complainant gave evidence that she was leaning over the edge of the boat and the appellant came from behind. He acted like he was going to push her in but then retracted. He pulled her into sort of a bear hug and his hands touched her breasts (T 66).
4. She believed both his hands, made contact to the front of her breasts. She described 'It was quite significant pressure on just that one area of my breast, which was enough to make me feel uncomfortable and that it wasn't an innocent thing' (T 67, lines 37-40).
5. The complainant was unsure how long the contact lasted for or whether anyone else was on the boat at the time. She said the boat was stationary when this occurred, just in shore (T 67-68).
6. She did not make any immediate complaint because she was worried that she may have misinterpreted the contact (T 68).
7. Under cross-examination, the complainant agreed that she could only recall one trip to Bruny Island (T 83), and she had no memory of [the appellant's daughter] being in attendance (T 84). She disagreed with the suggestion that there was only one boat trip and that this was to go flathead fishing (T 84-85).
8. The complainant could not recall wearing a life jacket (T 85) but agreed that she was depicted in photographs wearing a life jacket (T 86).
9. The complainant conceded that she could not remember wearing only a bikini on the boat (T 88). She maintained that the appellant touched her on the breast (T 88)."
10. The evidence of the appellant's daughter is summarised as follows:

"51 She stated that the families went on a trip to Bruny Island in early March 2016 (T 131). They arrived in different groups (T 132). They had a few trips on the boat before the complainant arrived (T 133).

1. During the holiday, they mostly spent time together but there were moments of doing separate things. They could not all fit on the boat and only a couple could go out at a time (T 133).
2. Tendered on the trial as exhibit P 5, were a bundle of photographs taken by [the appellant's daughter] during this trip. The photographs depicted other parties swimming on the Saturday afternoon and [the appellant's daughter] said this was the only occasion of swimming (T 135). They depicted the appellant and complainant on the boat Sunday morning, the complainant wearing a life jacket (T 136-137).
3. In cross-examination, [the appellant's daughter] maintained that they only went swimming once and this was prior to the complainant's arrival (T 143). She did not recall the complainant swimming when she was in the boat and the complainant had spoken about her fear of water (T 146)."
4. The State also relied on the evidence of Allison, and others, as to the charged and uncharged sexual conduct of the appellant as evidence of a tendency of the appellant to have a sexual interest in adolescent females and to act on it in certain ways. The State submits that if accepted by the jury, this was a piece of circumstantial evidence that supported the complainant's account and strengthened the Crown case.
5. The appellant did not to give or adduce evidence. He declined to be interviewed by police after taking legal advice. His case was that the offending did not occur. It was submitted to the jury that they ought to have a reasonable doubt as to the allegation given the passage of time and the contradictory evidence provided by the appellant's daughter. It was suggested the complainant simply created a false memory.
6. Having conducted my own review of the evidence, I am wholly unable to conclude that no jury, acting rationally, could have been satisfied beyond reasonable doubt that the appellant indecently assaulted the complainant in the manner she described.
7. Even leaving the tendency evidence to one side, proceeding on the basis that issues of credibility and reliability of oral testimony are matters primarily for the jury, I am unable to say that the jury were not entitled, or ought not, to have accepted the complainant's evidence. It appears tolerably clear that there was only one boat trip on Bruny Island and that at a point in time the complainant was wearing a life jacket as pictured in evidence. However, that fact does not preclude an indecent touching in the manner described by the complainant.
8. In my view it was reasonably open for the jury to be satisfied of the appellant's guilt on the basis that the complainant was a credible witness and that her evidence was not negated by her wearing a lifejacket at the time of the assault.
9. It is not necessary for me to consider the tendency evidence on this ground. It was, no doubt, a potent source of circumstantial evidence as will be seen when I turn to count 4 on the indictment and if error is demonstrated in the learned trial judge's directions as to the use that can be made of tendency evidence, as asserted by the fourth ground of appeal, then it will affect this count and count 4.
10. As a discrete ground of appeal I would dismiss ground 1 of the notice of appeal.

Ground 2 - that the verdict in relation to count 4 was unsafe and unsatisfactory

1. The appellant submits that an intention to engage in an "unlawful sexual act" is a central element of the offence under s 125D(1) of the Code, and that a conviction can only be sustained if the Court is satisfied that the evidence led at trial, provided a rational basis upon which the jury could conclude beyond reasonable doubt that either the appellant had an actual intention to procure the complainant, to engage in an unlawful "physical sexual act" or, that there was no reasonable alternate hypothesis consistent with innocence.
2. The appellant submits that the communications led as evidence in respect of count 4:
   • Did not contain any explicit request for a sexual act.
   • Were open to multiple interpretations, including an innocent or inappropriate but non-criminal intent for the purposes of s 125D(1).
   • Without proper jury directions on how to approach inferential reasoning in relation to intent, the jury was at risk of allowing speculation to form the basis of a guilty verdict.
   • In all the circumstances, there was a real risk that the jury convicted without being satisfied beyond reasonable doubt of the necessary intent.
3. The following is an extract from the transcript of the complainant's uncontradicted evidence about the messaging between her and the appellant and his drop offs of money, alcohol and marijuana:

"And from when you first - that initial contact was made with Mr Rainbird or from Mr Rainbird, how long did it take before the conversations turned sexual?... .. .Pretty quickly.

What do you mean by 'pretty quickly'?. .. ...With in a week [indistinct word].

And did you ever initiate any of the conversations with Mr Rainbird yourself?... ..Yes.

And why was that? Was there any ever reason that you might be seeking to make the contact with him?... .. .I enjoyed the attention and the company.

Okay. And did you ever ask anything of him yourself?.. .. ..I asked for some money.

And was that something that happened once or more than once, that you asked for money?. .. ...More than once.

How many times do you think it was you asked for money?... .. .Five or six.

Now, I want to talk to you about the circumstances of this money, then. Why did you ask him for money? .. .. ..I didn't work or anything, and I just needed some money at the time.

Okay. And when you asked for money, was i t always the same set amount, or did it vary?.. ... .It was usually fifty to a hundred dollars.

Okay. And when you asked him for money, what type of response did you get from Mr Rainbird?... .. .He said yes.

Did you then agree to provide him with pictures and videos, or not?. .. ...Yes, I agreed.

And tell me about receiving the money, how would that happen, would he transfer some money to you, would he give it to someone else, would you meet with him in person, or would he leave it somewhere, how did it happen?.. .. ..He would leave it somewhere.

And was there a usual spot that he'd leave the money for you or did -?.. .. ..There were -- it vary?.. .. .. - different spots.

What were those different spots ?. .. ...Next to the mailbox at my mum's house , across the street from my mum' s house next to a gate, and near Zap Fitness in North Hobart.

And how are these sort of locations chosen?. .. ...Mine - the first two were because I lived up at the signal station, and the last one I believe was because he had work or something nearby at North Hobart.

Was there any reason that the monies weren't handed over in person?.. ... .I didn't want to meet in person.

Had that ever been suggested that you meet in person?. .. ...Yes.

And who'd suggested that ?.. .. .. Stuart asked me to get in his car .

Was he doing anything in his car when he asked you to get in?... .. .He was sitting outside our house once he had dropped off the money.

Why didn't you get in his car?. .. .. .Because I didn't want to speak to him in person.

How much money do you think you received from Mr Rainbird in total?.. .. ..Five or six hundred dollars.

Did he ever, during the course that you were in contact with him, give you anything else?. ... ..Yes.

What else did he give you?.. .. ..Two bottles of vodka, a pack of cigarettes and some marijuana.

And did any of those coincide with any special occasions?. .. ...My birthday.

Do you remember which birthday it was, like how old you were turning?. ... ..My 15th, I believe.

Your fifteenth, you believe. And were all these items gifted to you on your 15th birthday, or was i t one or more?.. ... .Yes, I asked for these items, and they were dropped together.

So, on this particular occasion when you turned 15, whereabouts were the items dropped?. ... ..Next to the mailbox - oh no, sorry, across the road in the dirt car park.

Now, you've spoken about that he'd mentioned to you - you said earlier that he mentioned to you about wanting to have sex. Can you just take us through that?. .. .. He wanted to have sex with me, but I wasn' t 18 .

So, what was - what did he say?. ... ..Well, he said he wished I was older.

Did he say or make comments like that just the once or more than once?.. ... .About three or four times.

About three or four times. Do you remember the - you've spoken about him dropping things off, seeing him in his car, do you remember what type of car it was?. ... ..I think it was a black - I don't know car s very well, but I think it was black.

And when he would speak to you and make comments about sex and wanting to have sex, what did you say, how did you respond back to him, if at all?. .. .. .I would kind of go along with it and just be like, 'Ha ha, yeah.'

So, in relation to this contact with Mr Rainbird, how did i t sort of come to an end?.. .. ..I threatened to tell his wife..."

1. I do not accept any of the appellant's submissions. With or without instructions as to inferential reasoning the jury were entitled to conclude from the facts contained in the above passage of evidence that the appellant was grooming the complainant for the purposes of procuring a sexual act. It is to my mind ludicrous to suggest otherwise.
2. The personal drop offs and the circumstances in which they occurred are wholly inconsistent with merely wishing to secure the online relationship. The complainant had already sent the appellant images of her breasts and vagina and video footage of her masturbating herself. The jury was entitled to conclude from the invitation or invitations to the complainant by the appellant to get into his car, was or were invitations to do more than just "hang out" and involved blandishments to procure physical sexual acts. And as is submitted by counsel for the State on this appeal, notwithstanding, the evidence that the appellant suggested to the complainant that he wished she were 18 so they could have sex, it was open for the jury to reject this as an accurate reflection of his state of mind and that such comments were designed to build her trust and foster the relationship.
3. Notwithstanding that I may regard it as ludicrous to, in effect, suggest that the appellant's gifts and personal drop offs to the complainant of money, alcohol and marijuana were mere random acts of generosity, it was not necessary for the jury to conclude that those things (and the online communications generally) were designed to procure physical sexual acts. It was, as will be seen, enough to enable a finding of guilt if the jury were satisfied to the required degree that they were designed to procure online sexual chat and exchange of sexual images and videos. That is sufficient for the less criminally culpable alternative component of s 125D(1).
4. I have no hesitation in accepting the submission of counsel for the State that the only reasonable inference open on the evidence was that the appellant developed this relationship for the purpose of procuring a child for physical sexual abuse.
5. Again, as a discrete ground, I would dismiss ground 2 of the notice of appeal.

Ground 3 - errors in directions to the jury as to pathways to guilt on count 4

"60 The Appellant submits that His Honour misdirected the jury by conflating 'intention to procure' with the exchange of indecent images.

1. In His Honour's summing up in relation to count 4, the jury was instructed at AB Vol 2, 339:

'Now, if you're not satisfied that he wanted to persuade her to engage in a physical sexual act with him, that's not the end of the story because, if we go back to this crime of an indecent act with a child or young person which I've said at page 4.52, that can be committed by for example, exchanges of images. It can be an indecent act to procure her to engage in an act which constitutes an indecent act with or directed at her.

So, you would then think about that. Whether or not any of the images that you're satisfied were sent. If you were satisfied that they were sent, constitute him intending to get her to engage in an unlawful sexual act, that is to expose to her to either an indecent image that he sent or perhaps produce one herself to send to him...'

1. The Appellant respectfully submits that this direction erroneously suggested that the act of exchanging indecent images was sufficient to establish intent under s.125D(1), without requiring the jury to find actual intent to procure a physical sexual act.
2. The risk of jury confusion was compounded by the failure to leave an alternative verdict under s 125D(3) (Ground 3). His Honour's reasoning appears to reflect elements of s 125D(3), but he did not clearly direct the jury that this was a separate and distinct offence.
3. This misdirection had the potential to fundamentally alter the jury's approach to the evidence, as they may have convicted without being satisfied of the requisite intent on the basis that they were satisfied that the Appellant had sent [Jean Harrison] indecent material.

68(sic) His Honour's directions to the jury misrepresented the legal threshold for conviction under s 125D(1), allowing the jury to convict on a legally erroneous basis.

1. This error, combined with the failure to leave an alternative verdict under s.125D(3), resulted in a serious miscarriage of justice.
2. The Appellant submits that the conviction on Count 4 is unsafe and should be set aside."
3. This submission begs the question as to whether s 125D(3) of the Code was an alternative verdict which was open in circumstances where the definition of "unlawful sexual act" in the Code includes (by reference back to s 125B), not just a penetrative act or an indecent assault, but also "any indecent act with, or directed at, another person who is under the age of 17 years".
4. The relevant sections in the Code are (relevantly), as follows:

(1) Any person who does any indecent act with, or directed at, another person who is under the age of 17 years is guilty of a crime.

Charge: Indecent act with or directed at a child [or young person].

(3) The consent of a person against whom a crime is alleged to have been committed under this section is a defence to such a charge only where, at the time the crime was alleged to have been committed -

(a) that person was of or above the age of 15 years and the accused person was not more than 5 years older than that person; or

(b) that person was of or above the age of 12 years and the accused person was not more than 3 years older than that person...

125D Communications with intent to procure child or young person

(1) A person (the 'accused person') who makes a communication by any means, and to any person, with the intention of procuring a person under the age of 17 years, or a person the accused person believes is under the age of 17 years, to engage in an unlawful sexual act, either in this State or elsewhere, is guilty of a crime.

Charge: Grooming with intent to procure a child [or young person] for sexual abuse.

unlawful sexual act means an act that would, if committed in relation to a person under the age of 17 years, constitute an offence under section 124, 125B, 126 , 127 , 133 or 185 .

(3) A person (the 'accused person') who makes a communication by any means, and to any person, with the intention of exposing, without legitimate reason, a person under the age of 17 years, or a person the accused person believes is under the age of 17 years, to any indecent material, either in this State or elsewhere, is guilty of a crime.

Charge: Grooming with intent to expose a child [or young person] to indecent material.

indecent material means any indecent film, printed matter, electronic data and any other thing of any kind (including any computer image or depiction)."

1. In my view the appellant's argument is misconceived. When his Honour told the jury, while taking them through the memorandum to the jury, that if they were not satisfied that the appellant wanted to persuade the complainant to engage in a physical sexual act with him, the "that's not the end of the story", he was alluding to the reference back in s 125D(2) to s 125B. As can be seen, his Honour directed the jury back to paragraph 4.5 in the memorandum where he had explained what the words "indecent act with a young person" included and told them that, as distinct from a "physical sexual act":

"It can be an indecent act to procure her to engage in an act which constitutes an indecent act with or directed at her."

That is to say, for example, to ask the complainant to send him sexual images or videos of herself, or to direct sexual images of himself to her, with the intention of having her reciprocate.

1. In the circumstances of this case there was no room to leave the crime created by s 125B to the jury as an alternative verdict. If the jury were not satisfied that the appellant intended to procure the complainant for physical sexual acts, they understood that engaging with online sexual interactions including images and videos, also amounted to unlawful sexual acts for the purposes of s 125D(1). If they were not satisfied of that then there was no room for the operation of s 125B because the relevant alleged unlawful sexual act for the purposes of that section would be the same ones of which they were not satisfied for the purposes of s 125D(1).
2. I would dismiss ground 3 of the notice of appeal.

Ground 4 - errors in directions to the jury as to the use of tendency evidence

1. With respect to this ground the appellant accepts that the learned trial judge directed the jury that:
   • The State alleged that the appellant had a sexual interest in young girls and a tendency to act on that interest.
   • If the jury was satisfied that this tendency existed, it made it more likely that the offences charged had been committed.
   • The jury were not required to be satisfied of the tendency beyond reasonable doubt, but could use it as circumstantial evidence in deciding whether the offences were proved.
2. The appellant contends that those directions did not properly caution the jury against using tendency evidence in that His Honour failed to address in summing up:
   • Tendency evidence alone could not justify a conviction.
   • How tendency reasoning and circumstantial evidence could be used by the jury to draw particular inferences.
   • What constitutes circumstantial evidence.
   • The defence argument that the circumstances and context of each offence were very different, thus undermining the tendency argument.
3. The appellant argues that the manner in which the learned trial judged framed his directions blurred the line between a permissible use of tendency evidence and impermissible reasoning. His statement that a tendency "may increase the likelihood" that the complainants' accounts were true invited the jury to assume guilt based on character rather than an assessment of the specific evidence for each charge.
4. Counsel for the appellant submits that this direction effectively lowered the State's burden of proof and that in IMM v The Queen [2016] HCA 14; (2016) 257 CLR 300, the High Court stressed that the risk of unfair prejudice arises when tendency evidence is used as a shortcut to guilt rather than as part of a rigorous assessment of the evidence. Counsel submits that the jury were not adequately instructed on this and that created a real risk that the jury reasoned in a way contrary to law that is to say, that because the appellant had a tendency to engage in inappropriate communication with young girls, he must have engaged in the specific conduct alleged in the indictment.
5. This is said to give rise to a miscarriage of justice.
6. There is nothing in IMM which requires a trial judge to give any particular direction as to what tendency evidence is and how it may and may not be used. It is true, as submitted by counsel for the appellant, that central to any direction is a warning to the jury not to use the tendency evidence "as a shortcut to guilt rather than as part of a rigorous assessment of the evidence". It is also true that the adequacy of any direction can only be gauged by looking at the direction as a whole. It is therefore useful to set out what the learned trial judge actually said to the jury on the subject of tendency.
7. After summarising the tendency evidence relied upon by the State, his Honour directed the jury as follows:

"So how do you use this evidence? First of all, you must be satisfied that the conduct which is the subject of this evidence actually occurred, because if you're not satisfied that it occurred it can't be a basis for finding anything. But if you're satisfied that all or some of it did occur, then the question you ask yourselves is whether or not it does satisfy you that it discloses that Mr Rainbird had a sexual interest in - in these girls and a tendency to act - and/or a tendency to act on it in a particular way.

Now again, in making that finding, you do not consider any evidence in isolation, you consider all of the evidence and ask yourselves, 'Am I satisfied that he had a tendency, had this state of mind or a tendency to act on this state of mind in the way that's been alleged ?'

You don't have to be satisfied of the existence of this tendency beyond reasonable doubt. If you are satisfied then, having considered this evidence and on the basis of the evidence that you accept that he did have a tendency of this nature, then that can be used by you as circumstantial evidence when considering whether one or more of the particular charges have been proved.

An ordinary human experience is that if a person is sexually attracted to another or another type of person and has acted on that sexual attraction , then it makes it more likely, perhaps, that they've done so again on another occasion. In other words, if you conclude that the accused has that tendency, that sexual attraction to these girls, it may increase the likelihood that [Sally] and [Allison] and Jean Harrison's] accounts are true. So that's the relevance of tendency evidence, that it can be used by you as circumstantial evidence if you find that it existed, in deciding whether it might make it more likely that the charges are proved.

Now, bear in mind that this is just one part of the evidence relied upon by the State. You should give it what weight you think it deserves in the context of all of the evidence. Finding that a person had a tendency to do something is not enough on its own to prove guilt. It may assist the proof of guilt, but it's not enough by itself. The question is whether it makes it more likely that the accused conducted himself in the way the State alleges, and you must not substitute the tendency evidence for the evidence which directly relates to each of the particular charges. It's just a piece of circumstantial evidence that you can take into account if you wish.

Now, at different stages of your deliberations - at a different stage of your deliberations you would - you have to focus on the particular charges in the indictment and decide whether they are proved to your satisfaction beyond reasonable doubt. That's not what I'm talking about here. You are considering this evidence in the context of whether you're satisfied that this tendency's been established and you can only use this evidence in that context in the way that I've described.

Now, you recall I said to you yesterday that it's open to you to draw inferences, draw conclusions from other evidence, and in a criminal trial you - you would always think to yourself whether there might be some other explanation for some of the evidence that you've heard. And that's what the defence says here in respect of the tendency evidence.

The defence - the defence says that you can't be satisfied of any such tendency because when you analyse the evidence, either it didn't happen or there's an alternative innocent explanation for it. The defence argues that in many instances what's said to be evidence of a tendency were, in fact, perfectly innocent acts at the time being recast in the context of these allegations as involving a sexual element.

And I'll explain what the defence position is by reference to particular examples." (Emphasis added.)

1. In my view those directions answer all of the complaints made by the appellant. Tendency evidence alone could not justify a conviction. Indeed, no further or other directions were sought by counsel for the appellant at trial.
2. As to tendency reasoning and circumstantial evidence, the learned trial judge referred the jury back to what he had earlier told them about drawing inferences. And, his Honour clearly warned the jury against "taking a shortcut to guilt" and clearly told the jury that tendency alone could not establish guilt.
3. His Honour canvassed the tendency evidence itself including citing examples of how the appellant said the evidence was capable of being viewed in a perfectly innocent light. To the extent that his Honour may not have highlighted the appellant's argument that the circumstances and context of each offence were very different, "thus undermining the tendency argument" that was made clear enough to the jury by his counsel at trial in her closing address.
4. As to that, the appellant's counsel said:

"Now, I'd ask that you also scrutinise that carefully when you're considering your verdicts. In this particular instance, the circumstances and the nature of the allegations is vastly different between the complainants, and I'd suggest is so vastly different that I'd suggest tendency reasoning is of little assistance in this particular matter.

The three complainants make very different allegations, and I'd suggest that they warrant looking at individually. You can't use tendency reasoning to make up the shortfalls in a prosecution case. And in this instance, given the circumstances and the evidence that you've heard, you would have to essentially be doing that if you were to look at these matters from a tendency perspective."

1. In my view there was no error by the learned trial judge in his summing up and it is impossible to say that there was a miscarriage of justice arsing in the way suggested by the appellant.
2. I would dismiss ground 4 of the notice of appeal.

1. In Anderson v Tasmania [2020] TASCCA 11 at [109]- [111], Porter AJ said:

"109 The necessary content of a trial judge's summing-up has been the subject of considerable judicial discussion. Many of the primary cases were collected by Geason J in Riley (above) at [19]-[22]. The principles are clear. Relevantly to this case, they are as follows. The fundamental task of a trial judge is to ensure a fair trial of the accused. That requires instructions to the jury about so much of the law as they need to know in order to dispose of issues in the case, about the elements of the offence, the burden and standard of proof, and the respective functions of judge and jury. Subject to any statutory provisions, it will require the judge to identify the issues in the case and relate the law to those issues. It will require the judge to put fairly before the jury the case which the accused makes. See RPS v The Queen [2000] HCA 3, 199 CLR 620 at [41]; Lane v The Queen [2013] NSWCCA 317 at [36].

1. The obligation to put fairly the case of the accused, extends to explaining any basis on which the jury might properly return a verdict in the accused's favour: Castle v The Queen [2016] HCA 46, 259 CLR 449 at [59]. The way in which a judge structures the summing-up and the extent to which the jury is reminded of the evidence is a matter for individual judgment and should reflect the complexity of the issues raised in the case, the length of it, and the way in which it is conducted: Castle (above). Each charge to a jury must be tailored to the circumstances of the case and structured in the way assessed as most effectively distilling the issues for determination and, to the extent that is necessary, remind the jury of the evidence bearing on the determination of those issues: Alford v Magee [1952] HCA 3; (1952) 85 CLR 437 at 466; Huynh v The Queen [2013] HCA 6, 87 ALJR 434 at [49].
2. A trial judge is not bound to discuss all the evidence or to analyse all the conflicts in it, and there is certainly no need to 'painstakingly read all of the evidence to the jury': Domican v The Queen [1992] HCA 13; (1992) 173 CLR 555 at 560; R v Meher [2004] NSWCCA 355 at [77]. Where the jury is provided with a transcript of the evidence, as it was in the present case, the judge may consider that reference to the parts of the evidence that bear on the particular issues does not require reading passages from the transcript, or summarising it: Castle (above) at [59]. In R v Davis [1999] NSWCCA 15 at [24] Wood CJ at CL (with whom Spigelman CJ and McInerney J agreed) commented that where the summing-up in a short trial follows immediately after a defence address, particularly where the appellant has not offered any evidence, very little is likely to be achieved by a reiteration of the evidence or of the points made by counsel in their closing addresses; to require otherwise 'would be to credit the jury with little in the way of intelligence or common sense.'"
3. In Majok v The Queen [2015] NSWCCA 160 at [26]-[31], R A Hulme J (Hoeben CJ at common law and Hall J agreeing), the New South Wales Court of Criminal Appeal said:

"26 The overarching principle is that 'the requirement of fairness means that ordinarily the respective cases for the prosecution and the accused must be accurately and fairly put to the jury': Domican v The Queen [1992] HCA 13; 173 CLR 555 at 560-561.

1. In Robinson v R [2006] NSWCCA 192; 162 A Crim R 88, Johnson J stated (at [140]) the following as to the need for impartiality and balance in a summing up:

'[T]he judge's role in a criminal trial is to hold the balance between the contending parties without himself taking part in their disputations; the judge does not exercise an inquisitorial role in which he seeks himself to remedy the deficiencies in the case on either side, nor is it part of the function of the trial judge to don the mantle of prosecution or defence counsel: Whitehorn at 682. The fundamental task of a trial judge is to ensure a fair trial: R v Meher [2004] NSWCCA 355 at paragraph 76. Trial judges should normally refrain from advancing an argument in support of the Crown case that was not put by the Crown. There are two reasons for the unacceptability of a judge using the summing up as a vehicle for strengthening the Crown case - first, it is inconsistent with judicial impartiality and secondly, to do so denies the prosecution and the defence the opportunity either to disavow, or to meet the argument: R v Meher at paragraphs 87-93.'

1. As to the ability of a judge to express a view about the facts, in R v Zorad (1990) 19 NSWLR 91, the Court stated (at 106-7):

'A judge is always entitled to express his view of the facts, provided that he does so with moderation and provided always that he [or she] makes it clear that it is the jury's function (and not his [or hers]) to decide the facts and that it is their duty to disregard the view which he [or she] has expressed (or which he [or she] may appear to hold) if it does not agree with their own independent assessment of the facts.' (Citations omitted)

1. In RPS v The Queen [2000] HCA 3; 199 CLR 620 it was stated by Gaudron ACJ, Gummow, Kirby and Hayne JJ at [42]:

'... it has long been held that a trial judge may comment (and comment strongly) on factual issues. But although a trial judge may comment on the facts, the judge is not bound to do so except to the extent that the judge's other functions require it. Often, perhaps much more often than not, the safer course for a trial judge will be to make no comment on the facts beyond reminding the jury, in the course of identifying the issues before them, of the arguments of counsel'.

1. As to a judge going beyond the arguments that were presented by the Crown, Wood CJ at CL said in R v Meher [2004] NSWCCA 355:

'[87] Finally, it may be observed that trial judges should normally refrain from advancing an argument in support of the Crown case that was not put by the Crown. It is one thing to bring to the attention of a jury an alternative lesser count, that is fairly open on the evidence, or an available defence, even though it was not mentioned by the Crown Prosecutor and defence counsel, in their closing addresses, for example manslaughter in a case where the accused was indicted on a count for murder. It is quite another thing for a judge to advance an argument, on behalf of the Crown in support of the Prosecution case, which the judge considers was available, but was either overlooked, or not used by the Prosecution.

[88] There are two reasons for the unacceptability of a judge using the summing up as a vehicle for strengthening the Prosecution case. First it is inconsistent with judicial impartiality. Secondly, to do so denies the Prosecution and the defence the opportunity either to disavow, or to meet the argument.

[89] The observations of this Court in a joint judgment (Spigelman CJ, Wood CJ at CL, and Kirby J) in R v RTB [2002] NSWCCA 104 are apposite:

"[55] In the present case, both of the issues that have arisen were of a character that could have been put by the Crown as a suggestion to the jury. In neither case was there any necessity for the trial judge to say anything to the jury. There was no suggestion of any unfairness to the Crown in the way the case was conducted. Nor was there any other reason for the trial judge to put an argument not advanced by counsel. (see eg R v Heuston (1995) 81 A Crim R 387 at 393).

[59] In each of the two respects of which complaint is now made, the intervention of the trial judge urged upon the jury a particular mode of thought. His Honour suggested that there could have been an explanation for the deficiency in the complainant's evidence, of a character which was not of itself based on any evidence but which, to a legal mind, would appear to be in each case a logical possibility. Juries are not required to think like that.

[60] The fact that each of these 'possibilities' was put to the jury by the trial judge, rather than by the Crown, may have directed that the jury's collective mind in assessing credibility in a particular way. Specifically, the thrust of the trial judge's directions, on each of the two occasions, was that, notwithstanding the appearance of inconsistency in each of the two respects, there was a possible explanation. Such matters of speculation, whilst perhaps appropriate for counsel, should not receive the added weight of the intervention of the judicial officer. In each respect the jury could have understood the trial judge to be suggesting that, because there may have been an explanation as a matter of logic, they should not take these matters into account in determining the credibility of the complainant.

[61] In the event, in our opinion, the directions to the jury were, in a critical respect, lacking in the appropriate balance."

[90] The permissible area within which a trial judge may draw to the jury's attention an argument that was not put by Counsel, was conveniently noted by Hunt CJ at CL in R v Heuston (1995) 81 A Crim R 387 at 393:

"Sometimes, of course, a judge is obliged - even in what might be described as the ordinary case to draw the attention of the jury to an argument which has not been put by counsel, if it is necessary to do so in order to ensure that the jury has sufficient knowledge and understanding of the evidence to discharge their duty to determine the case according to the evidence. Some such occasions are obvious - where, for example, the principal 'defence' is one of alibi, yet there is clear evidence of intoxication which would be relevant to specific intention in the event that the alibi fails. Everyone realises that, from a tactical point of view, if counsel were to address upon such an issue of intoxication it would weaken the strength of his client's case on alibi, and trial judges should usually discuss the need to give directions as to such matters with counsel (in the absence of the jury) before the summing up commences. Other such occasions are not always so obvious, and - again, stated in very general terms in relation to the ordinary case - there will be no miscarriage of justice if arguments which may have been available on the evidence are not put by the judge in the summing up if they had not already been put by counsel. Sometimes, indeed, it may produce positive mischief if the judge raises arguments which could have been but which were not put or requested by counsel."

[91] Additionally, occasion might arise for the judge to draw attention to some matter which had not been dealt with by the Crown, where that is necessary to restore a balance to the trial, and where the Crown Prosecutor had no reason to foresee it, or any opportunity to deal with it.

"In this case it is clear that the remarks complained of were made by the trial judge in the context of criticisms made of the Crown case not foreshadowed during the course of the trial and not anticipated by the Crown Prosecutor in his address. This Court has drawn attention before to the fact that judges may find it necessary to become involved in forensic argument insofar as it is necessary to deal with matters raised by defence counsel who make the last address to the jury - see for example R v O'Donoghue (1988) 34 A. Crim. R. 397, R v William Booth, (CCA (NSW) unreported 29 September, 1993 and R v Gluscheski (1987) 33 A Crim R 193."'

1. It is important to bear in mind as well that 'in order to determine whether a summing up is unfairly balanced, it is necessary for it to be considered in its entirety and in the context of the issues and the evidence led in the trial': R v Sukkar [2005] NSWCCA 54 at [90] (Wood CJ at CL)."
2. In the present case the appellant submits that the learned trial judge's summing up lacked neutrality, gave the State's case undue emphasis and failed to properly direct the jury on the key aspects of the defence case.
3. In detail, the appellant's written submissions state as follows:

"101 The Appellant argues that His Honour's summing up favoured the prosecution case in several ways:

(a) Extensive repetition of the prosecution's key themes, reinforcing its case in a way that risked overemphasizing its strength.

(b) Lack of equivalent clarity in presenting the defence case, leaving key defence arguments underdeveloped.

(c) Use of language that subtly endorsed the prosecution's position, capable of influencing the jury to accept the State's case without applying their own independent assessment of the evidence.

102 Specific examples from the summing up (AB Vol 2, 320-341) include:

(a) His Honour's strong reinforcement of the prosecution's tendency argument, describing it as a pattern of behaviour, rather than presenting it as a contested issue.

(b) Minimal reference to defence arguments regarding inconsistencies in the complainants' accounts.

(c) When addressing the complainants' credibility, His Honour emphasised their consistency and believability but failed to adequately summarise key defence challenges to their reliability.

1. The Appellant contends that His Honour's treatment of the defence case was unequal, in that His Honour:

(a) Did not adequately highlight inconsistencies in the complainants' evidence, despite these being a core part of the defence case.

(b) Provided less detailed analysis of the defence's challenges to the prosecution evidence, reducing their weight in the jury's mind.

(c) Did not fairly restate the defence's position on Count 4, where the accused's intent was the key issue.

1. In Domican v The Queen [1992] HCA 13; (1992) 173 CLR 555 at 560, the High Court stated that a judge is not required to repeat every argument but must ensure that the defence case is properly and fairly put to the jury. Where a judge fails to provide adequate instructions on key defence issues, the verdict may be unsafe.
2. Given the credibility-based nature of this trial, His Honour's summing up carried significant weight in shaping how the jury assessed the evidence. Any imbalance in its presentation risked improperly influencing the jury's deliberations.
3. The High Court in Castle held that judicial intervention should not distort the presentation of evidence in a way that suggests a preference for one side's case. By overemphasising the State's position while failing to fairly summarise key defence arguments, the summing up failed to meet this standard.
4. In light of these deficiencies, there is a real risk that the jury was improperly influenced by the imbalance in His Honour's summing up. This compromised the fairness of the trial, and the verdicts should be set aside."
5. I have read the learned trial judge's summing up and I cannot accept the appellant's submission that it was not neutral. In my view, it offends none of the principles set out in the passage above from Majok.
6. In her written submissions counsel for the State very helpfully epitomised the summing up as follows:

"In the present case, the learned trial judge, in the course of the summing up, canvassed the following matters:

• The need to be dispassionate given the nature of the case;

• Separate consideration of each count on the indictment;

• The respective cases as to count 1 (T 20-22). With specific reference to the defence argument that the offending was inherently implausible and highlighting factors which tend to undermine the complainant's credibility;
• The respective cases as to count 3 (T 22-23). With specific reference to the defence argument that "it did not happen" and factors which suggest the complainant's account was untrue;
• The elements of the crime of communicating with intent to expose a young person to indecent material;
• The drawing of inference/s as to intent;
• The respective cases as to count 2 (T 23-27). With specific reference to the defence argument that there was no communication and doubts as to the complainant's credibility (T 26-27);
• Complaint evidence;
• The elements of the crime of communicating with intent to procure a young person to engage in an unlawful sexual act. With specific instruction as to the issues of intent;
• The elements of the crime of facilitating the involvement of a person under the age of 18 years in the production of child exploitation material;
• The respective cases as to count 5 (T32-33). With specific reference to the defence argument that there was not explicit request from the appellant or facilitation by him; and
• Delay in complaint, highlighting the defence case in relation to delay and unreliability" (T 34).

1. I see nothing in the structure, tone or emphasis of the learned trial judge's comments that would permit it to be said they lacked neutrality.
2. His Honour said in the early part of his summing up:

''So, it's your duty to consider the evidence. I will not be trying to persuade you one way or another what to make of the evidence and most importantly, I will not be hinting to you what verdict I think you should return. That's not my role. And even if I were hinting to you what I think about the evidence or what your verdict should be, your duty would be to ignore what I say because what I say about that doesn't matter. It's your judgement about that that's important, not mine. My duty is to be as fair as I can both to the prosecution and the defence, not tell you what I think of the evidence."

1. In my assessment his Honour did not hint what he thought about what was an overwhelming case against the appellant, but lest the jury might think that he was, they were adequately warned to ignore anything he said that might be interpreted in that way.
2. There is no merit in this ground. I reject the appellant's arguments. And I note that in this case what was said by Wood J in Riley v Tasmania [2020] TASCCA 1 at [2] are entirely apposite. Her Honour said:

"At the conclusion of the summing-up, just before the jury retired to deliberate, the learned trial judge asked counsel (not the same defence counsel representing the appellant on the appeal) whether there was anything that they wished his Honour to raise with the jury. Counsel expressly stated that there was not. Defence counsel was well positioned to assess the fairness and adequacy of his Honour's summary of the defence case and the overall impartiality of the summing-up. Of course, if there is any deficiency or misdirection in a summing-up to the jury, counsel should point that out to the trial judge before the jury retires to deliberate so that it may be rectified there and then. The response of defence counsel in seeking or declining to seek further directions at the conclusion of a trial judge's summing-up is a factor that an appellate court may take into account. It may be regarded as a cogent consideration in determining whether the summing-up is defective as asserted on appeal or whether some inadequacy or misdirection in a summing-up is so significant that there has been a miscarriage of justice: La Fontaine v The Queen [1976] HCA 52; (1976) 136 CLR 62 per Barwick CJ at 72; Lambert & Stokes v Tasmania [2007] TASSC 76 at [114]- [116]; Lee v Tasmania [2006] TASSC 92 at [38]- [40]. As to these questions, it is considered that counsel's response in the prevailing circumstances of a trial can be a useful gauge. Here, for the reasons expressed by Geason J, it has not been shown that the summing-up was deficient or fell short of what was required. I agree with the reasons of Geason J which dispose of the appeal. Moreover, defence counsel's response at the closing stages of the trial provides a sound indication that it seemed then from the defence perspective the summing-up was fair, the reference to the defence contentions were adequate, and that it was unnecessary for the learned trial judge to add anything further."

1. In this regard it must be noted that the appellant was represented at trial by one of Tasmania's most experienced defence lawyers.
2. I would dismiss ground 5 of the notice of appeal.

Ground 6 - conduct of counsel resulting in a miscarriage of justice

"110 A miscarriage of justice arises where serious errors or omissions by defence counsel deprive the accused of a fair trial (JAGD v Tasmania [2021] TASCCA 16). The appellate court must assess whether counsel's failures had a material impact on the trial's fairness and the verdict's safety.

1. The High Court in TKWJ v The Queen [2002] HCA 46; (2002) 212 CLR 124 at [28] confirmed that errors by trial counsel can amount to a miscarriage of justice where they result in the jury being deprived of a fair consideration of the defence case.
2. Conduct amounting to such a miscarriage of justice includes failures to challenge critical evidence, mismanagement of the defence case, or failing to request necessary judicial directions (Birks v The Queen (1990) 19 NSWLR 677)."
3. Counsel for the State does not take issue with those characterisations of the principles to be extracted from those cases but adds:

"In addition, as a general rule, an appellant is bound by the conduct of their counsel at trial: Crampton v R (2000) 206 CLR 161 per Gleeson CJ at 172-173 [15]-[19]; S_tandage v Tasmania_ (2017) 28 Tas R 184 per Wood J at 215-216 [74]-[76]."

1. Counsel for the appellant submits, first, that trial counsel failed to adequately challenge key aspects of the State's case through cross-examination, that the complainants' evidence contained significant inconsistencies, particularly regarding timelines and interactions with the appellant and that the appellant's counsel failed to properly test those inconsistencies in cross-examination, missing opportunities to weaken the State's case. Second, it is submitted that trial counsel failed to address key exculpatory evidence in closing submissions.
2. In my view the first of these criticisms demonstrate a lack of appreciation of the purpose of cross-examination. As I have already noted the appellant's counsel was an experienced trial lawyer. It is impossible to discount the proposition that she was pursuing a forensic purpose in the way in which she cross-examined, preferring to put the impact of the inconsistencies to the jury in her closing address, rather than argue her case through the witnesses by seeking the witness's acceptance of the deductive logic involved.
3. Having reviewed the transcript of the evidence I am of the view that to the extent that the appellant's counsel did not cross-examine about these issues, she nonetheless fully exposed them to the jury in closing. And while it is no part of my role to evaluate on appeal, the effectiveness of counsel's closing address, I am wholly unable to say that there were serious errors or omissions or that the jury was deprived of a fair consideration of the appellant's defence or that critical evidence was not challenged.
4. Once again counsel for the State's submissions provide an epitome of the key cross-examination by the appellant's trial counsel and the relevant elements of her closing address:

"The respondent contends that the key State witnesses were robustly cross-examined on the relevant issues at trial, including potential inconsistencies. The appellant highlights the inadequacies in cross examination of witness, [Mr Gladstone]. These were then sufficiently canvassed in the appellant counsel's closing address (T 31-32) and highlighted to the jury.

1. Similarly, the respondent contends that the appellant's counsel's closing address explored contradictions in the complainant's evidence and emphasised key arguments. For example:

(a) The contradiction in the evidence of the complainant's location when the disclosures were made (T 31-32).

(b) The physical improbability of the allegation of indecent assault against [Sally Gladstone] and the lack of complaint (T 32-33).

(c) The unreliability of the memory of [Sally Gladstone] (T 33).

(d) The potential for other innocent explanations for tendency evidence relating to [Sally Gladstone] (T 33-34).

(e) Specific inconsistencies between the evidence of [Sally Gladstone] and [Mr Gladstone] in relation to the wearing of bikinis (T 34).

(f) The lack of corroborating evidence in relation to the grooming charge for [Allison] (T 35).

(g) The lack of opportunity for the indecent assault allegation in relation to [Allison], with specific regard to the evidence of [the appellant's daughter] and the photographs (T 35-36).

(h) The potential for other innocent explanations for tendency evidence relating to [Allison] (T 36-37).

(i) The potential inconsistencies between the evidence of [Allison], [Mr Gladstone] and [Sally Gladstone] in relation to circumstances of the appellant's masturbation comments (T 37-38).

(j) The limited probative value of the complaint evidence (T 39).

(k) The emphasis on the issue surrounding the appellant's intent in relation to count 4 (T 39-40).

(l) The emphasis on the lack of evidence supporting 'facilitation' in relation to count 5 (T 40-41)."

1. The third submission of counsel for the appellant as to the conduct of the appellant's trial counsel is that she failed to ask the trial judge to direct the jury on the availability of an alternative verdict under s 125D(3). This submission relies on James v The Queen [2014] HCA 6 for the proposition that where an alternative verdict is available, but neither the judge nor counsel press for it to be left to the jury, a miscarriage of justice may occur.
2. As to this submission, I have already explained at [55] above that there was no alternative verdict available under s 125D(3) in the circumstances of this case.
3. I accept the conclusion of counsel for the State that "the cross-examination cannot be objectively assessed as lacking, the closing address canvassed key defence issues and alternative verdict was not open. In these circumstances, there was no trial counsel error which resulted in a miscarriage of justice".
4. I would dismiss ground 6 of the notice of appeal.

Ground 7 - the sentence was manifestly excessive

1. In passing sentence on the appellant, the learned trial judge made the following comments. I have set them out in full because they concern offences other than those which were the subject of the appeal against conviction. His Honour said:

"Stuart Rainbird, you were found guilty by a jury of two counts of indecent assault, one count of grooming with intent to expose a young person to indecent material, one count of grooming with intent to procure a young person for sexual abuse and one count of involving a person under the age of 18 years in the production of child exploitation material. It is my duty to sentence you in accordance with the verdicts. It is my responsibility to find facts for sentence, but my findings must be consistent with the verdicts. Facts adverse to you must be proved by the prosecution to my satisfaction beyond reasonable doubt. Facts in your favour must be proved by you on the balance of probabilities.

All of the crimes were committed between about 2014 and 2018 against three girls who were part of the broad friendship group of one of your daughters. When the offending commenced you were about 47. Within that group you knew and socialised with some of the parents. Throughout this period, despite the obvious difference in age and personal circumstances, you interacted with those three girls, as well as others in the same group, on social media, usually Instagram or Snapchat. In each case the contact was initiated by you by responding in some way to messages or images they had posted. I am satisfied, as I think that the jury must have been, that your contact with them was at least in part motivated by sexual attraction to girls of that age. Taking all of the evidence into account, I find that you had a tendency to be sexually attracted to them and that tendency was circumstantial evidence which made the accounts of each complainant more likely to be true. To protect their identities I will, in the published version of these comments, refer to them by pseudonyms.

The first indecent assault was committed against Sally Gladstone. She said that she was about 11 at the time but she may have been slightly older. That made it most likely 2014 or 2015. You became friends with her father. On an occasion when you and your family were visiting her home you sat down between her and your daughter on the couch. Sally said that, after having put your arm around her, you moved your arm down behind her so that your hand exerted subtle pressure on the side of her breast over her clothing. You then moved your hand further down and put it inside her track pants to as to touch the skin on the top or outer part of her upper thigh. It follows from the verdict that the jury was satisfied that indecent touching occurred. I am satisfied that the touching of the breast and the thigh both occurred. I found Sally's account to be coherent and persuasive, and not in the least implausible. Her evidence was given calmly and clearly and she did not waver in cross examination. It is easy to understand how she was too embarrassed, confused and nervous to say anything at the time to her parents and also why, in the circumstances, your actions were not noticed by anyone else. The contact with her breast was subtle and the contact with her thigh was covert and concealed by her clothing, your respective positions and perhaps the side of the couch. I accept her evidence that you had initiated social media contact with her in which you asked, sometimes late at night, what she was wearing in bed. That conduct is not the subject of a charge. However, her evidence was strongly consistent with the evidence of other witnesses about your social media interaction with them. Sally's evidence also corroborated their evidence and supported the evidence of your tendency.

The crime of grooming with intent to expose a young person to indecent material was committed against Sally's older sister Allison. At about the time of her 15th birthday, later in 2016, you initiated contact with her on social media, initially on Messenger but then on Instagram and Snapchat. The fact that you chose to communicate on-line so personally with a girl her age at all suggests an improper motive, but the nature and content of the messages confirmed that to be so. At first the messages were seemingly friendly and innocuous, but they became increasingly intrusive, frequent, personal and expressly or impliedly sexual. A feature of the Snapchat application is that communications, including messages and images, are temporary unless saved. Only the Messenger messages were saved. However I believe her evidence, as I think the jury must have, about the Instagram and Snapchat messages she received. It was strongly supported by the evidence of a friend of hers who saw some of the messages and was told by Allison about others. The communications continued for a prolonged period, at least many months if not longer. Your messages were very frequent, sometimes daily, and were often sent late at night when she was likely to be alone in her room. You commented on the attractiveness of her bottom. You asked her what her favourite sexual position was. You began to send images of yourself. Most were apparently innocuous but one was of you sprawled on the couch with your hand down your pants. One message conveyed to her that you had found her bottom so attractive in the leggings she was wearing that you masturbated yourself. Her evidence was that this message was a little later by which time she was 17. However her 17th birthday was not until late 2018 and I am satisfied that the message was sent before then. The jury was satisfied beyond reasonable doubt that your intention when communicating with Allison was to expose her to indecent material. I find that the indecent material took the form of the messages to her to which I have referred with suggestive or overtly sexual content and the image of you with your hand down your pants. However, I am satisfied that even the communications which were not indecent were sent as part of a course of conduct with the underlying intention to, over time, introduce sexual material to her. There is no evidence of any express request from you that she respond in a sexual way either by words or images. If there had been you would have been charged with a different offence.

The other indecent assault was committed against Allison in March 2016 when your family and her family shared a weekend away in a rented house in a coastal part of southern Tasmania. Allison was 14. It was before you began communicating with her on-line, but the assault demonstrates an already existing sexual interest in her. The jury must have been satisfied beyond reasonable doubt of the truth of Allison's evidence that, when you and she were together on your small motor boat you grabbed her from behind into a sort of bear hug and, in the course of doing so you indecently touched the front of her breasts over her clothing. She said that she was wearing a bikini at the time. I am not satisfied beyond reasonable doubt that this was so, and find that she was more likely wearing some form of summer clothing although not a life jacket. Whether she was wearing a life jacket or not, consistency with the verdict requires that you be sentenced on the basis that the indecent touching of her breasts occurred. The physical contact was opportunistic and relatively brief. I cannot be satisfied that anyone else was present.

The charge of grooming with intent to procure a young person to engage in an unlawful sexual act and involving a person under the age of 18 years in the production of child exploitation material both concern Jean Harrison. The charges are closely related. Your offending against her was, objectively, the most serious. She was friends with Sally Gladstone. I find that, in 2016, you initiated online contact with her by commenting favourably on messages she put on Instagram wearing tight gym gear. You then began communicating with her privately on Instagram. She was a willing participant. She was flattered by the attention and was flirtatious. However she was, when it began, only about 14. The communications soon became sexual and resulted in the exchange of sexual images. These exchanges continued until about the time of her 16th birthday in mid-2018. Some of the images exchanged were not sexual, but many were. You sent her still and video images of your erect penis including video of you masturbating. She sent you photographs of her naked breasts and vagina, and videos of a similar nature including one of her masturbating her vagina with her hand. The communications were very frequent, at times almost daily. I am satisfied that the images she sent you of herself were produced and sent at your request. There is no doubt that it was child exploitation material and that you knew it was child exploitation material because it depicted her engaged in sexual activity or in a sexual context, in a way a reasonable person would find offensive.

I also find that, from relatively early in the piece, she requested other things from you: money, alcohol and other gifts. You agreed in return for more images. Money and gifts were dropped off at an agreed hidden location for her to collect. I believe her evidence that she did not want to meet or speak to you in person and so there was never, and never likely to be, any direct physical contact. However it was the intention of your communications which is the important element of this grooming charge. I am left in no doubt that your intention was to have her engage in an unlawful sexual act by receiving material you created which was so indecent that the sending of it amounted to an indecent act with a young person. However I find that your intention went beyond that. On her account, which is the only account we have, you exchanged messages about, to use her words, "we want to maybe have sex", but that she was not 18. You told her that you wished that she was older, the indication being that you would not have sex with her because she was not 18. Yet, she said that on occasions when you were dropping things off for her you sent messages asking her to get into the car with you to "hang out". She never agreed. She thought that it would, again to use her words, "turn sexual" if she got into the car with you. It is your intention, not her expectation, which is relevant, but I find that she was correct. The only reasonable and rational inference to be drawn from all the evidence in the trial is that your intention in communicating with her as you did was to ultimately bring about actual sexual contact of some nature with her. It may have been hopeful speculation but I am satisfied that it was your intention. Any sexual touching of any nature between you and her would have been unlawful because of her age.

Your offending did not come to light until 2021 when those three girls realised that, as between themselves, you had offended against each of them. Until then, none realised what had happened to the other. Mr Gladstone became aware of what had been going on and the police were notified.

I am required to take into account any aggravating circumstance referred to in the Sentencing Act, s 11A, which may apply. The only crime which was committed against a victim under 13 was the indecent assault of Sally Gladstone. That crime was committed while others were present. Although none were aware of it, their presence must have added to her embarrassment, discomfort and confusion about how to respond. None of the victims were under your care, supervision or authority except in the case of the indecent assault of Allison Gladstone on the boat. That crime was committed when she was temporarily under your supervision. By assaulting both her and her sister you certainly breached their trust and the trust of their parents in allowing them to be in your immediate presence.

You are not entitled to the mitigation a plea of guilty may otherwise have attracted. Each of the victims gave evidence during the trial. There was some delay prior to resolution of the charges. Your conduct was reported to the police in February 2021 and you were spoken to shortly thereafter. You were left in a state of uncertainty until March 2022, more than a year later, when you were charged. Trial papers were not filed until April 2023 and the trial occurred in September 2024. Delay of itself is not a mitigating factor. In particular, for child sex cases, delay between the commission of an offence and it being reported should not be regarded as mitigating. However delay since then can be relevant, delay before the bringing of charges generally being of greater weight. I would accept that you have had these charges hanging over your head for almost four years, and that has been a source of some anxiety. You lost one job in March 2021 when the reason your phone was confiscated was disclosed to your employer. However you obtained other employment which continued until the verdict. As to rehabilitation, you began counselling with a psychologist soon after the police spoke to you which has furnished you with the skills to address and reduce the risk of re-offending. Conversely, the complainants have also been the subject of prolonged delay before being vindicated by the verdicts.

Your personal circumstances were outlined by your counsel and in a report prepared by a probation officer of your suitability for a home detention order. I was given a number of references as well as a report dated 25 October 2024 from a clinical psychologist, Michael Guy. You are now aged 57. You have no relevant prior convictions. It is not suggested to me that there has been any subsequent offending. During your life you have enjoyed close and supportive relationships with your parents and siblings. Your physical health is reasonable and you have no alcohol or drug issues. You are currently unemployed as a result having been found guilty of these offences but, until then, you were engaged throughout your adulthood in employment and self-employment in project and manufacturing management. References from past employers and clients speak highly of your work and personal qualities. I accept that these convictions will make it much more difficult, if not impossible, to find other employment. You have a long, loving and stable marriage of which there are two adult children. Your wife has written a letter describing your strong love, support and care for her and your children. References from other females within your daughters' friendship group describe their trust of you and the support and friendship you have offered them without a hint of the type conduct of which you were found guilty. However, as Mr Guy describes, you were, at least at the relevant time, living a double life which was kept secret from others.

As a teenager you were subjected to years of serious sexual, physical and psychological abuse perpetrated by a male peer. That was, no doubt, a very distressing part of your past. Mr Guy indicates that you meet the criteria for PTSD. Since March 2021 he has been treating you for that disorder and associated behavioural patterns. The pre-sentence report also refers to a diagnosis of PTSD which you manage with medication and ongoing psychological intervention. According to Mr Guy, the effects of the abuse included a proneness to prove yourself sexually, use of pornography and a pattern of people pleasing. As to the charges on the indictment, the only conduct which you admit is part of the interaction with Ms Harrison. You admit the impropriety of that conduct which you attribute to poor judgment and lack of insight arising from mental health concerns, grief following the death of your father, unhappiness with your employment and a tendency to wish to please. Mr Guy reports that you told him that your contact with her commenced as being supportive and non-sexual, but changed when she sent photos unsolicited and requested photos from you. You reported that when she asked for money, cigarettes and alcohol and threatened disclosure to your family, you felt compelled to comply but declined or ignored other requests. To the extent that this suggests that you only responded to communications she initiated and, at some point, stopped requesting images from her I find it to be inconsistent with the evidence at trial.

Although Mr Guy assesses the risk you pose of future offending as low, there is nothing in his report which would justify the conclusion that the relationship between mental impairment and your crimes is such that the need for general deterrence is moderated or that your criminal culpability is reduced. Mr Guy does indicate that imprisonment might severely affect your PTSD. I take that into account but, in the circumstances, it is a factor which is to be balanced against other sentencing aims. I do not accept that treatment reasonably required will not be available to you while in custody although not to the same level as may be available in the community. Mr Guy and your counsel mention the potential impact on your family. Your wife has her own challenges. I accept that the impact of a sentence of imprisonment on her and your children will be considerable but, generally, hardship to dependants is not a significant mitigatory factor. It is part of the price to be paid for serious crime and should not be allowed to affect what is otherwise the correct sentence.

The factor of overwhelming importance in sentencing for crimes of this nature is the protection of children. Offenders must not only be punished and denounced, but sentences must serve to, as far as a court is able to achieve, signal to others the likely harsh consequences. Child sexual offences carry the presumption of harm. Your offences carry varying levels of objective gravity and criminal culpability. However all of the conduct had great potential to corrupt and damage the victims. I heard victim impact statements from each which details the profound and lasting effects your behaviour has had on them. It is the type of impact which is to be expected. As always, circumspection is required when considering the statements. I accept that the objective gravity of the indecent assaults, when compared to other sexual offences dealt with by this court, is not high. The sentence I impose must be proportionate to the seriousness of each crime. That does not mean that the psychological impact cannot be real and significant. There may have been other factors at play when considering the impact on Ms Harrison, but I am left in no doubt that your conduct was a significant causative factor in many of the psychological problems she describes. All three victims describe an ongoing lack of trust in adult men which affects their own relationships.

To the extent that your offending consisted of on-line communications between you and the victims, there is a strong need for general deterrence and protection of the public. Offences of that nature are difficult to detect and are almost always committed in private, beyond the notice of those who would be responsible for the safety and protection of the young person. Young persons who participate in such on-line communications must, as far as a court is able to achieve, be protected from their own vulnerability, immaturity and misjudgment by imposition of sentences which seek to deter those who would seek to take advantage of them.

Had I been considering the indecent assaults of Sally and Allison Gladstone, and possibly even the grooming offence against Allison Gladstone, individually and in isolation, then a community based order might have been an appropriate sentence. I do not, by that indication, wish to understate in any respect the seriousness of those crimes or the impact on each of those victims. However those crimes are not to be considered in isolation. They are to be considered in the context that the instances of unlawful sexual acts directed at these children were not isolated, but formed part of a course of conduct which extended over a significant period and affected each of the three victims. For that reason I have concluded that home detention does not adequately address the sentencing aims and is not an appropriate sentence.

I will impose separate sentences for each crime but will make orders of cumulation and concurrency, and suspend some of the terms, with the aim of imposing a sentence which is a just and appropriate measure of your total criminality across all counts, taking into account the interests of, and separate harm to, each of the three victims.

Stuart Rainbird, you are convicted on each count on the indictment. I am not satisfied that you do not pose a risk of committing a reportable offence within the meaning of that term in the Community Protection (Offender Reporting) Act 2005 in the future. I make an order directing that the Registrar cause your name to be placed on the Register and that you comply with the reporting obligations under the Act for a period eight years from your release.

On count 1, the indecent assault of Sally Gladstone, you are sentenced to imprisonment for three months. On count 2, grooming Allison Gladstone with intent to expose her to indecent material, you are sentenced to imprisonment for nine months. On count 3, the indecent assault of Allison Gladstone, you are sentenced to imprisonment for three months. I wholly suspend the terms imposed on counts 1, 2 and 3 for three years from your release. Had I not suspended the terms imposed on those three counts I would have ordered that counts 1 and 3 be served concurrently but cumulatively with count 2, an effective term of one year. I would also have ordered that effective term to be cumulative to the terms I am about to impose. The law imposes a condition on the suspended terms that while orders are in force you not commit any offence punishable by imprisonment. If you breach that condition then you will be required to serve the suspended term unless that is unjust. On count 4, grooming Jean Harrison with intent to procure her for sexual abuse, you are sentenced to imprisonment for 15 months from 12 November 2024, the day you were remanded in custody. On count 5, involving Jean Harrison in the production of child exploitation material, you are sentenced to imprisonment for two years and three months, also from 12 November 2024, thus concurrently with the term imposed on count 4. For each term of actual imprisonment imposed I order that you not be eligible for parole until half of the term is served.

The result is a total term of imprisonment of three years and three months from 12 November 2024, one year of which is suspended for three years from your release. You are not eligible to apply for parole until you have served half of the operative sentence of two years and three months."

1. The appeal ground is that "the cumulative effect of the sentences imposed was manifestly excessive". The appellant submits that:
   • The total length of the sentence is disproportionate given the sentencing range in comparable cases (Sentencing for Serious Sex Offences Against Children Research Paper 3, 2018).
   • The appellant's positive pre-sentence report, which assessed him as suitable for home detention, was not properly considered in mitigation.
   • The learned sentencing judge placed undue weight on the assertion by counsel for the State that treatment for the appellant's post traumatic stress disorder (PTSD) would be available to him in prison if he received a custodial sentence.
   • His Honour did not sufficiently consider the recommendation made by the appellant's treating psychologist, Mr Michael Guy, that his rehabilitation and risk of reoffending would best be addressed by the imposition of a non-custodial sentence which would allow him to continue treatment for PTSD.
   • Counts 4 (grooming with intent to procure) and 5 (involving a young person in production of child exploitation material) share overlapping factual elements (see in particular the further and better particulars filed by the State on 5 September 2024.
   • The requests for photographs and footage of the complainant were used to sustain both charges, yet the sentences imposed by his Honour were cumulative rather than appropriately adjusted to reflect this overlap.
2. At the outset I note that notwithstanding the ways in which it is said that the learned sentencing judge arrived at a total sentence that was manifestly excessive, the ground of appeal is nonetheless one of manifest excess. No specific error has been made the subject of a ground of appeal.
3. The task for this Court in such cases is well established. The appellant must establish that the sentence imposed was "unreasonable or plainly unjust": DPP v Pearce (2016) 28 Tas R 1 per Pearce J at [8], citing House v King (1936) 55 CLR 499 at 505.
4. There can be no tariff for the particular combination of crimes for which the appellant was convicted, and comparative sentencing data is of no use given the unique combination of particular circumstances involved.
5. Counsel for the State enumerates in her submissions the relevant features of the appellant's crimes that underpin the extent of his culpability. They are:

(a) That the indecent assault committed upon Sally Gladstone took place when she was under the age of 13 years (an aggravating circumstance pursuant to s 11A of the Sentencing Act).

(b) That the indecent assault committed upon Sally Gladstone occurred in the presence of others (an aggravating circumstance pursuant to s 11A of the Sentencing Act).

(c) That the indecent assault committed upon Allison occurred whilst she was temporarily under the appellant's supervision (an aggravating circumstance pursuant to s 11A of the Sentencing Act).

(d) That the offending in relation to Sally and Allison Gladstone involved a breach of their trust and the trust of their parents.

(e) That the appellant was not entitled to the mitigation of a plea of guilty and the complainants were required to give evidence at trial.

(f) The profound and lasting effects the behaviour had on the complainants and the impact on them as set out in their victim impact statements.

(g) The nature of the acts, with varying degrees of objective gravity, and the instances of unlawful sexual acts was over a significant period of time.

1. It is well understood that in sentencing for child sexual offences the principles of general deterrence, denunciation and vindication of victims are to the fore. I have no hesitation in concluding that the total sentence imposed on the appellant was not manifestly excessive and the appellant's assertion of various overlooked or underweighted considerations on the part of the learned sentencing judge do not shine any bright light for me on a different conclusion. I regard the sentence as lenient, but well within his Honour's wide sentencing discretion.
2. I would dismiss ground 7 of the notice of appeal.

1. I have had the opportunity to read the reasons of Estcourt J. I agree with those reasons and would join in the Orders he proposes. I also agree with the additional reasons provided by the Chief Justice.