RC v R; R v RC

RC's Appeal AGAINST Conviction

1. Because there is a challenge to the reasonableness and supportability of the conviction, it is necessary to set out the evidence adduced at trial in some detail.

The Crown Case Against RC

1. RC is the paternal grandfather of LC, the complainant in each of the three counts charged by the Crown. The charged offences were alleged to have taken place in LC's home during the course of his evening bath on 10 October 2017.
2. On the evening of 10 October 2017, LC's mother and older sister were absent from the family home; Mrs C having taken her daughter to a singing lesson. LC's father was absent overseas with work commitments. LC was left in the care of his grandfather, who was visiting the C family home to celebrate LC's sixth birthday the following day.
3. The appellant gave LC his bath, during the course of which it was alleged that he indecently assaulted him by rubbing his genitals (count 1), and then digitally penetrated the complainant's anus twice in quick succession (counts 2 and 3).
4. After the appellant left the C family home the following day to travel interstate, LC told his mother what had happened. Mrs C contacted her husband and told him about the allegation. Mr C telephoned the appellant and confronted him with LC's allegation, which was strongly denied. Mrs C subsequently took LC to a doctor, and the matter was referred to police.
5. On 13 October 2017 officers with the Joint Investigation Response Taskforce (or "JIRT") interviewed LC over two discrete intervals, with the interviews recorded audio-visually. These recordings (marked for identification, or "MFI", 3) became the bulk of LC's evidence in chief at the appellant's trial, pursuant to ss 306S and 306U of the Criminal Procedure Act 1986 (NSW).
6. In his first JIRT interview on 13 October 2017, six year old LC told the interviewing officer that Grandpa R, the appellant, visited his home, having arrived before his birthday, and leaving after it. Also at home for LC's birthday were LC's mother and sister, BC.
7. LC said that, on his birthday, he and Grandpa R had "done balloons", and played cards and motorbikes. He was asked if he had done anything with Grandpa R that he hadn't liked, and responded "No, nope". LC said that the appellant had bathed him but, when asked to tell the interviewing officer what had happened during the bath, he said "Um, I don't know. I don't know". He went on to say that he did not remember, and then that "I just don't want to talk about it" because he did not remember.
8. By reference to a diagram of happy, sad, scared, angry and other faces, the complainant said that being asked questions about the appellant made him angry. Again by reference to the diagram of faces, LC said that he had been sad when bathed by the appellant. When asked why, he responded, "I don't know, I don't know".
9. After 18 minutes of questioning, the interview was suspended. Remaining in the company of another JIRT officer, LC was able to have a drink and a break for a little over 20 minutes. The interview then continued.
10. The interviewer asked the complainant about having visited the doctor recently. LC agreed he had seen a doctor, and said that he talked to the doctor "about grandpa […] washing me in the bath". The complainant continued: He did something … to the bath to me. He, he touched my privates.
11. LC went on to tell the interviewing officer that the appellant "stick his finger up my butt", something he said he told his mother about "when I got out of the bath". He said that it occurred before his birthday [on 11 October]. He said that his grandfather touched his "back private" which was used for "pooing", with his finger going inside. When asked how that had made him feel, the complainant said it made him angry, because the appellant "did it twice". He said: He put it up and then he put it out and then he put it back in.
12. The complainant said that it hurt. He did not say anything to his grandfather, as "everybody was asleep and I didn't want to yell".
13. LC said that his grandfather also touched his "front private", being the part used for "weeing", with his hand. He said that he did not say anything to the appellant because his sister was asleep.
14. The complainant was asked who was at home and said that only he, his grandfather, his dog, and his cat were at home, as his mother had taken his sister to dance. He thought that they were away for "two minutes". He subsequently said his sister was asleep on another night.
15. The complainant said that after the bath he dried himself and put on pyjamas. He then had dinner and dessert with his mother, sister, and grandfather, and went to bed. The next morning, his sixth birthday, he went out for breakfast with his grandfather, who then took him to school.
16. LC said that he told his mother "what grandpa did to me" […] "when grandpa went home".
17. The remainder of the complainant's evidence was taken as "pre-recorded evidence" pursuant to clauses 84 and 85 of Division 2 of Part 29 of Schedule 2 to the Criminal Procedure Act. The evidence was adduced before Judge Girdham SC sitting without a jury, on 2 November 2018 at Newcastle District Court. By that date, the complainant was aged a little short of 7 years and 2 months. He was accompanied in the remote witness room by a witness intermediary (or "children's champion"), pursuant to clause 90 of Schedule 2.
18. The trial judge asked some general questions of the complainant, and on the basis of the answers given to those questions, her Honour determined that, although LC displayed knowledge of the meaning of "truth" and "lies", his evidence would be taken on an unsworn basis, in accordance with s 13 of the Evidence Act 1995 (NSW).
19. The complainant gave some short evidence in chief, additional to his interview with JIRT. He confirmed that he had told the police the truth in his interview, but said there was something that he had gotten wrong. He told the court that his sister had gone dancing as he had said, but that he had forgotten to say that she went to his school for dancing.
20. LC identified a document showing a colour coded three day timeline, which was marked for identification 2. He had drawn some pictures on particular days of the timeline, such as a bath drawn on the red coloured section for 10 October 2017, and a birthday cake for the green coloured block representing his birthday on 11 October 2017. The third section was coloured blue and represented the day after the complainant's birthday.
21. The complainant also identified the "faces diagram" he had referred to when speaking to the JIRT officer on 13 October 2017, the diagram becoming Exhibit ("Ex.") 1 in the trial; and some body diagrams upon which he had circled the private part used for weeing and the private part used for pooing. This became Ex. 2.
22. LC was asked by the Crown Prosecutor about telling his mother about what the appellant had done. He said that he had told his mother "about grandpa putting his finger up my privates" but not about the touching of his front private. He said he told his mother the truth.
23. After a short break the complainant was cross-examined by counsel for the appellant (also counsel in the proceedings before this Court). His evidence was interspersed with regular short breaks.
24. The complainant said that he remembered having a birthday cake the night before his birthday because his grandpa, who was visiting, had to go home the next day. He was shown eight photographs taken by the appellant of him and his family with the cake (Ex. 3), and then a further two similar photographs (Ex. 4).
25. He said he ate cake with his mother, sister, and grandpa, and then went out riding on his pushbike. He was wearing his football training shirt at the time.
26. As to the bath, the complainant said that he had been sitting down in the bath; he denied ever standing up whilst bathing. He said the bath happened first, then he rode his bike, then he came inside and had dinner and cake. He was asked if he was in pain when riding his bike and eating dinner and said that he was not. It had not hurt him to sit on his bike.
27. Four digital audio-visual recordings were shown to the complainant, each depicting the complainant in some activity on the night of the birthday dinner (10 October 2017). The first recording was of the complainant riding his bicycle; he confirmed that he had not been in pain at that time. The next two recordings were taken during and around the time of dinner, and again the complainant said he had not been in pain. In the final recording the complainant was shown as he played with a toy helicopter; he said he had been happy when playing. The recordings became Ex. 6.
28. The complainant said that, the following morning, he had gone out for breakfast with his grandpa. A photograph of him taken at breakfast became Ex. 5. The appellant left the C home that day.
29. LC confirmed that he had talked to his mother about what the appellant had done after the appellant had left for his own home. He told counsel for the appellant that he hadn't liked his grandpa washing him [in the bath], because he didn't want him to touch his privates. He said that it had made him feel uncomfortable when his grandpa bathed him. His grandpa washed his front private, or "doodle" slowly. He had told his mother about grandpa putting "his finger up my private". He was challenged on that evidence: Q: Now, he didn't put his finger where the poo comes out, did he? A: Yes. Q: Did he? A: Yes. […] Q: It didn't hurt, did it? A: It did.
30. The complainant was asked where his mother and sister were at this time and answered, "They were on the couch". He was asked why he had told police in the JIRT interview that they were not at home, and answered, "Because my sister had to go to dance". He agreed that it would be wrong to say that his sister had been asleep, and denied ever having told anyone that his mother and sister were both asleep when the appellant had bathed him.
31. The complainant did not remember having seen a doctor.
32. At that point the complainant told the trial judge that his ear was hurting, and the witness intermediary noted that the complainant had been in pain from his ear when chewing food earlier. After a short break, the cross-examination continued.
33. The complainant was asked how many times the appellant had "put his finger where the poo comes out", responding, "He pulled it out and then he put it back in". He confirmed it was two times. He was again challenged on that evidence: Q: Because he never really put his finger where the poo comes out, did he? A: He did.
34. He was also challenged about his evidence of having put on pyjamas after his bath, with counsel reminding him that in the photographs of him riding his bicycle and at dinner he was wearing a football shirt. LC insisted that he had worn his football shirt to bed. After a series of questions about whether or not he had worn his soccer shirt to bed, or had ever denied having done so, he was asked: Q: It's a lie to say you wore your soccer shirt to bed that night? A: Yes. Q: Why do you tell a lie about that? A: I don't know. WITNESS INTERMEDIARY: I don't think he's understanding your Honour.
35. After a request from the trial judge to change the form of the questions to avoid complex concepts, the complainant maintained that he had worn his soccer shirt to bed on the night of the bath. He was not sure if he had told the Crown Prosecutor in a conference the previous day that he had worn pyjamas to bed that night.
36. Counsel put the accused's case to the complainant in this way: Q. All right. Grandpa never put his finger in your bottom where the poo comes out at all, did he? A: He did. Q: He didn't do it once or twice? A: He did do it. Q: At any time, in the bath or any other time? A: He did. He did it in the bath.
37. The complainant was then excused.
38. The remainder of the trial was conducted before his Honour Judge Smith SC and a jury of twelve, commencing on 22 July 2019, and concluding on 29 July 2019.
39. On 22 July 2019, the recording of the complainant's interview with the JIRT officer in October 2017 was played to the jury, as was the recording of his evidence in chief given on 2 November 2018. The recording of the cross-examination was played to the jury the following day, 23 July 2019. The exhibits tendered at the time the complainant gave his evidence were all in evidence before the jury.
40. After the evidence was played, a document was tendered (as Ex. 10) in which the Crown disclosed a statement made by the complainant to the Crown Prosecutor during a conference held on 1 November 2018. The complainant had told counsel for the Crown that at the time of the bath: "he believes his mother was at home and his sister was at home and they were both in the lounge room watching TV. After the bath he dried himself with a towel, put on pyjamas and went and ate dinner".
41. Mrs C gave evidence before the jury over 23 and 24 July 2017. She said that on the evening of Tuesday 10 October she took her daughter to a singing lesson. The complainant was left at home with the appellant. Mrs C said that the singing lesson was of an hour's duration, with the drive to the lesson taking about 20 to 25 minutes each way. Mrs C and BC got home a little after 7pm.
42. When she arrived home Mrs C saw that LC was not in pyjamas; he was in clothes. She said "[LC] changes his clothes probably about ten times a day". He had not eaten, so soon after, LC, BC, Mrs C and the appellant sat down to have dinner. Mrs C noticed that the complainant was restless and would not sit down. After the evening meal, they had a birthday cake that the appellant had made for LC.
43. The following day, being LC's birthday on Wednesday 11 October 2017, the appellant took LC to a local café for breakfast, with the arrangement being that he dropped the complainant to school after breakfast. Mrs C did not expect to see the appellant again that day, as she knew him to be returning to his own home interstate.
44. That evening Mrs C took the complainant and BC to a restaurant for dinner. BC went to a dance class after dinner; Mrs C and the complainant later collected her and they drove home. At home, Mrs C turned the shower on for LC and he showered. He had been showering or bathing himself for some time, and Mrs C left him alone.
45. She returned soon after and, after asking LC if he was clean, turned the shower off and got a towel for her son.
46. Mrs C told the jury that "[LC] looked at me in the eyes and asked if he could - if he could tell me something". She gave the following evidence: And then he said, "Last night in the bath when grandpa washed me, it hurt me." And I said, "What do you mean?" And he goes, "It hurt me in my tummy." And I said, "What do you mean, hurt you in your tummy?" And then he said to me, he didn't know whether he could scream or cry because it was his grandpa. And I was like, and then he said, "I could feel it in my belly, in my tummy," and he pointed to, he was pointing to his tummy. And I said, "What," and he said, "Grandpa's finger went in my bottom and I could feel it in my tummy." And I said, I said, "Okay. Grandpa shouldn't have done that, [LC]." And then [LC] said, "He also was hard on me when he washed me fast." And I said, "What," and he had his hand opened, and just back and forth on his penis area.
47. Later that evening, when putting LC to bed, Mrs C asked the complainant to tell her again what Grandpa had done to him in the bathroom. The complainant told her, "Grandpa put his finger in my bottom". Mrs C thought that she asked her son if it still hurt, to which he responded "no, not really". He said it had hurt when he had done a poo.
48. Mrs C contacted her husband later that night. Subsequently, Mr C spoke with the appellant by telephone.
49. On Thursday 12 October 2017 the appellant telephoned Mrs C, asking what had been said, and denying that whatever LC had said was true. She later received, on 13 October and 20 October 2017, two emails from the appellant. In the first email (Ex. 14), directed to Mr and Mrs C, the appellant said that his family was his "most valued asset" and he was "appalled and sickened to the core" at the allegations made against him. He gave an account of the complainant's bath: At the time in question he was being his normal co-operative self (as he mostly is when it's only the two of us). He was playing outside and I had put him on notice that he'll need a bath or shower before [Mrs C and BC] get home so he would be ready for dinner. He was cool with that. When the time came, he opted for a bath. After a while in the bath I washed him all over with bath wash. That meant his upper body, his crotch and his legs. The whole process was probably about 10 seconds. That might sound like a super quick bath but if you count out 10 seconds, it's ample time to wash a small body - and a disproportionate amount of those 10 seconds was dedicated to below the knees where a disproportionate amount of washing was needed. He played a bit longer making a slide with the bath wash! I dried him and he asked could he put on some clothes he chose (as opposed to PJs). I said, yes. He then went back outside and several times called me out to watch him and film him trying to jump with his bike over the up-turned half-barrels. As you know, that was followed by birthday presents from me and a birthday eve dinner. All relaxed and fun.
50. The appellant referred to his distress at the situation, and repeated that "nothing untoward" had occurred. He attached a photograph taken by him of LC at breakfast on 11 October 2017, where the complainant appears to be eating happily.
51. In the second email, of 20 October 2017, the appellant referred to the lack of any response to his first email, and observed: It means that you have made the most horrendous judgment about me without even contemplating the many avenues for misunderstanding, misconception, and misrepresentation.
52. He again asserted that nothing untoward had occurred, and that LC had conducted himself in an absolutely normal manner with the appellant, both at the time and after the bath. The appellant expressed his great sadness at the prospect of being excluded from the lives of his son, daughter-in-law, and grandchildren because of a "gross misperception".
53. Mrs C took her son to see Dr Rallings on the afternoon of 12 October 2017, after LC had been to school.
54. In cross examination, Mrs C said that the complainant had told her that the appellant had washed him "hard" or "rough" in the bath. She conceded that she had not used the word "rough" in the statement she made to police.
55. She explained that, although she had said in her statement that LC had been in his pyjamas when she and her daughter returned home on 10 October 2020: [LC] had many different pyjamas. They could be clothes or something. He doesn't literally normally wear pyjamas every day to bed. He's got certain clothes he calls pyjamas.
56. This included his soccer shirt and shorts, which he frequently wore to bed.
57. Mrs C was cross-examined as to the number of occasions on which LC said anal penetration had occurred: Q. […] Your recollection is that [LC] told you that night of his birthday, after the shower, that his grandfather had put his finger in [LC's] bottom on one occasion? A. I didn't say one, I - well, [LC] - I didn't know how many, I didn't question [LC] how many, I don't say "one" in there anywhere. I didn't question him. Q. But you see, you don't say "two" either, do you? A. I don't say any number.
58. It was suggested to her that her account of what her son had said to her when he complained about the appellant could not be correct, as it was beyond the linguistic capacity of the six year old complainant. Mrs C maintained that LC had been "very capable" of speaking in those terms, and had done so.
59. She said that LC had been "his normal self" when the family had dinner that night. When counsel, perhaps unwisely, asked her for her opinion of the veracity of the complaint made by LC, Mrs C said that her son had no knowledge of things of the nature he complained of, and she accepted his account as a truthful one.
60. Dr Peter Rallings was the doctor LC was taken to see on 12 October 2017. Dr Rallings gave evidence on 23 July 2019. He had not seen the complainant prior to the consultation. He took a history from LC recorded in the form of a computer note that: The child states paternal grandfather put his finger up inside anus while he was bathing him on Tuesday night this week.
61. The doctor clarified that the child did not say "anus", using the word "bottom" instead; he did not recall the word used by LC for "grandfather". He made the note after having asked the complainant in confirmation if his grandfather's finger went inside his bottom, receiving a positive response.
62. Dr Rallings rejected the assertion put to him in cross-examination that his note was "an amalgam" of what he had been told by both Mrs C and LC. He agreed that he had not made a note of a complaint of touching of the genitalia, and would have done so had that been said.
63. Mr C gave evidence on 24 July 2019. He said that, when overseas in the course of his employment in October 2017, he received a telephone call from his wife, who was very upset. She told him that his father had molested their son.
64. Soon after speaking with his wife, Mr C telephoned his father and "accused him". Mr C said that his father denied it. Mr C did not speak with his father again, but he did receive a text message from him on 18 October 2017 in which his father wrote: My darling [Mr C], I had set myself a week to wait for a response to my letter of last Friday in the hope that the air might be cleared. But it's killing me. I'm not sleeping or eating, and feeling quite ill ask [?all] the time. I just can't come to terms with the thought that anyone could think that I would have done what was said. I love you. Dad.
65. In cross-examination, Mr C agreed that he had said in the statement he gave to police that his wife told him "very bluntly that my father had molested [LC] by putting his finger up his bottom". He also agreed that his wife had not referred to "molestation of [LC's] penis", although he said he had been told about that at a later time.
66. The final witness in the Crown case was Detective Senior Constable Matt Davis. Detective Davis was the police officer who interviewed the complainant on 13 October 2017, and had overall carriage of the police investigation.
67. On 23 October 2017 the officer contacted the appellant by telephone and made arrangements for him to go to a regional police station, where he was arrested. The appellant was interviewed by other detectives at that location, and an audio-visual recording of the interview was tendered to the trial court. It was played to the jury.
68. In the interview, the appellant described his close and involved relationship with his grandchildren. He said that he had frequently looked after the complainant and his sister when their parents were engaged with work or study. He referred to his relationship with LC as "beautiful", and said that there had never been any problems between them, or in him caring for his grandson.
69. On the evening of 10 October 2017 he said that he ran a bath for his grandson who got into the bath without a problem. He had been preparing dinner in the kitchen but went into the bathroom and washed the complainant, "probably a ten second wash". This involved putting bath soap on his hands and: "do his neck, under his arms, crotch, his knees and feet, and spent more time on his knees and legs than anything".
70. The appellant said that he returned to the kitchen and left LC to play in the bath for a time, before going back into the bathroom and getting his grandson out of the bath. LC dried and dressed himself, and then went out onto the lawn playing and riding his bike.
71. There was a birthday party later with a cake the appellant had made for LC and "everything went fine". The following morning Mrs C left early for work and LC came into the appellant's bedroom and watched videos with him in bed. They got ready to leave, and then went to a café for breakfast, after which the appellant dropped the complainant at school.
72. The appellant had to drive interstate that day, and left immediately.
73. He said that when, two days later, he "got a phone call" he was "absolutely horrified". He told police that what horrified him the most was that his son and daughter in law would believe that "it could happen. That I would do that". He said: [..] when you're a grandfather bathing a kid which he's done so many times, and a ten second stretch, and it wouldn't have been any more than 10 seconds, the whole washing process, why would I put my finger up his anus? […] It didn't happen. It, it, it's inconceivable that it could happen".
74. The appellant said that he was devastated. As to the allegation that he had digitally penetrated the complainant's anus twice in quick succession, he said: So the thought of inserting a finger in his anus is just horrific to even contemplate, and, and doing it twice is just, it's just beyond belief. Beyond belief.
75. He was asked whether he had washed LC's buttocks and said that he had rubbed his hand "down under his, under his, in his crotch area" but asserted that: "I've never, sort of, washed his buttocks in, in that sense. Um, I mean, you, you're washing, sort of, sweat and grime and dirt off. You're not, sort of, wiping his bottom".
76. The appellant was asked why he didn't wash the complainant's bottom, and said: Oh, because that's not usually part of your bathing, to, to concentrate on that aspect. I mean, I probably rubbed my hand down very quickly, um, but it wasn't as though you were, sort of, he had a dirty bottom where I, or, that I even looked to see whether he would have had a dirty bottom.
77. Soon after, the interviewing officer sought to clarify whether or not the appellant had washed the complainant's buttocks: Q: Mm-hmm. So I just want to clarify, did you wash his buttocks or not? A: His buttocks, yes. Obviously. Q: Yeah. You said before that, no, you think you only washed his groin. So did you wash the back part of his buttocks? A: I would, I would, yes. His buttocks are, his, the bum part, yes. Obviously I would have rubbed my hands over that, and put my hand down in, into, probably down the back of the crack into his groin, but all in a second or two, just to rub soap on it. Q: Yeah. A: It wasn't as though you dwelt down there, or stopped there or, and he didn't react to anything at the time, or, or later. Q: So did you hand pass down the crack of his bottom - - - A: Oh, prob, probably, yeah. Probably. Q: Did, did any finger or anything, um, insert into his anus during - - - A: No, no. Q:[15:14] - - - that process? A: Absolutely not. Absolutely not. I mean, it, it just seems to me to be physically ridiculous to even contemplate.
78. The appellant told the police that there was something "highly suspicious" going on, and speculated that LC may have been "fed" or "encouraged" to make "a litany of allegations". He said the only thing that had been mentioned to him prior to the police interview was that he was alleged to have put his finger in LC's bottom. Although nothing was said about the circumstances in which this occurred, the appellant told the police that he had assumed: [It] must have been something to do with the bath. That's why I'm, I've said in here [the emails he wrote to Mr and Mrs C] somewhere that, um, you know, he, he's obviously mis, he, obv, something's reacted to it some, some way that is in a, inexplicable or con, or confused.
79. He said that LC was standing in the bath when he washed his torso, sitting down to have his legs and feet washed. He did not use a wash cloth, but rather his hand and bath gel.
80. In cross-examination before the jury, Detective Davis confirmed that the appellant, aged 76 at the time of the trial, had no criminal record. Having been shown a Family and Community Services ("FACS") file entry, he confirmed that it recorded that, after the JIRT interview, LC had been asked by a FACS officer to nominate "safe people" and he had included the appellant in his list.
81. There followed a great deal of cross-examination concerning the role of the JIRT interviewing officer (and evidently based upon the questioner's misunderstanding of the nature of the role). The questions took the form of pointing to aspects of the complainant's answers given in the JIRT interview, and demanding of the officer why he had allowed LC to say things which were "wrong", "false propositions", and "false memories", without pointing out the "lies" to LC. In answer, Detective Davis endeavoured to explain to the cross-examiner the protocols for interviewing children.
82. With that evidence, the Crown closed its case. There was no case for the appellant.

The Appellant's Grounds on the Conviction Appeal

1. Although four grounds are advanced, there is a degree of overlap between them. Ground 1 combines a complaint of inconsistent verdicts, with a complaint that the verdicts are "unsafe and unsatisfactory". Since ground 4 also argues that the verdict returned with respect to count 2 is unreasonable, grounds 1 and 4 will be considered together.
2. Grounds 2 and 3 make the same complaint - that there was error by the trial judge in failing to give a second "Markuleski" direction at a late stage of the trial, leading to a miscarriage of justice. They will also be considered together.

Ground 2: "The jury, having returned verdicts of not guilty in relation to Counts 1 and 3 on the Indictment, His Honour, the trial judge, erred in failing and refusing to re-charge the jury in accordance with the decision in R v Markuleski [2001] NSWCCA 290 (1 August 2001)"

Ground 3: "His Honour, the trial judge, fell into error in delivering a Black Direction to the jury on two occasions but failing or refusing to, at the same time, give a further Markuleski Direction which, in the circumstances of the case, resulted in a miscarriage of justice"

1. These grounds complain of error because of the trial judge's refusal to give a second Markuleski direction to the jury, a reference to the direction discussed in R v Markuleski (2001) 52 NSWLR 82; [2001] NSWCCA 290. To understand the grounds, it is necessary to give an account of the trial proceedings after the evidence to the jury closed.
2. After Detective Davis was excused and the evidence completed, the solicitor appearing for the Crown addressed the jury. Counsel for the appellant followed, commencing his address that same afternoon. The closing submissions for the appellant were concluded the following day, 25 July 2019. The trial judge summed up to the jury later that morning.
3. In the course of the summing up, the jury were directed as to the need for separate consideration of each of the three counts brought against RC and, in that context, a Markuleski direction was given in unremarkable terms. The trial judge said: It is alleged by the Crown that [the appellant] committed three offences. Those charges are being tried together as a matter of convenience. However, you will in due course be required to return a verdict in respect of each of them. You will need to consider each charge separately. There is no legal requirement that the verdicts must be all the same. Giving separate consideration to the individual counts, means that you are entitled to bring in verdicts of guilty on some counts and not guilty on other counts if there is a logical reason for that outcome. If you were to find [the appellant] not guilty on any count, and particularly if that was because you had doubts about the honesty or reliability of [the complainant's] evidence, you would have to consider how that conclusion affected your consideration of the remaining counts. In particular, that means that such a doubt ought to be taken into account on [the complainant's] reliability generally.
4. Immediately preceding those directions, the jury were told: The Crown largely depends on you accepting the reliability of [the complainant]. That being so, unless you are satisfied beyond reasonable doubt that [the complainant] is both an honest and accurate witness in the account he has given, you cannot find the accused guilty. You will have to examine the evidence of [the complainant] very carefully in order to satisfy yourself that he is both honest and reliable.
5. His Honour went on to outline the elements of the three offences, and to give other relevant directions to the jury. There were no complaints about the summing up from either the Crown or the appellant, and neither party sought any additions or corrections to the directions given to the jury.
6. The jury was sent out on verdict at about midday on 25 July 2019.
7. Soon after the jury sent a note asking for the recordings of the complainant's evidence (the JIRT interview and the pre-recorded evidence), trial transcript of Mrs C's evidence and that of Dr Rallings, and the "police interviews" of Mr and Mrs C.
8. The complainant's evidence was played a second time to the jury in the courtroom, in the presence of the trial judge and the parties. The transcripts of the evidence of Mrs C and the doctor were provided to the jury; the jurors were told that they could not have access to the statements made by Mr and Mrs C to police because the documents were not in evidence.
9. The jury returned to the jury room a little before 4.30pm. At the request of counsel for the appellant, the jurors were asked to sit on in case they "could make a decision that day", but a note was received soon after advising the court that the jury wished to continue to deliberate the following day. The jurors were allowed to separate for the day, resuming deliberations on Friday 25 July 2019.
10. On the afternoon of 25 July, a note was received from the jury asking: "We are seeking clarification on the definition for count 2. 1. Does there have to be a sexual connotation to the act? Does there have to be a sexual element to the act? 2. Can the act be accidental or does it have to be deliberate?"
11. The trial judge reassembled the court and further directed the jury that no sexual element was required in proof of count 2 (and 3), in contrast to count 1, where such an element was required to be proved. It was made clear that the Crown had to prove that the penetration of the anus alleged in counts 2 and 3 was deliberate and not an accident. The jury returned to its deliberations.
12. About an hour later a further note was received from the jury in which it was indicated that verdicts had been reached with respect to counts 1 and 3, but not in relation to count 2. The trial judge said that he would not take the verdicts that had been reached, but instead ask the jury to continue to deliberate.
13. Neither party asked his Honour to take the verdicts for counts 1 and 3, but counsel for the appellant asked that the jury be given "a Black direction" and a further Markuleski direction. The Crown opposed a Markuleski direction, noting that it assumed "a particular outcome". Counsel for the appellant conceded the point, saying: I see the force in what the Crown says to your Honour.
14. The jury returned to the courtroom and was given a direction in accordance with Black v The Queen (1993) 179 CLR 44; [1993] HCA 71 relevant to count 2 in conventional terms. At about a 3:15pm the jury returned to the jury room.
15. The court reassembled a little past 4pm, when the verdicts (of not guilty) were taken in relation to counts 1 and 3. The jurors were again allowed to separate, to return to continue their deliberations on Monday 29 July 2019.
16. In seeking to be excused from attendance on 29 July 2019, counsel for the appellant asked the trial judge: […] would your Honour consider between now and Monday a further Markuleski direction on Monday.
17. The Crown argued against a further Markuleski direction, submitting that the directions already given to the jury were adequate to permit it to discharge its function. His Honour agreed to consider the application.
18. At some stage on 29 July 2019, a further note was received from the jury stating that it could not reach a unanimous verdict on the remaining count. The trial judge told the solicitor for the Crown and the solicitor for the appellant that he intended to give a shortened Black direction. He said he would not repeat the Markuleski direction. The jury were subsequently given a modified Black direction, and asked to return to the jury room to further consider the matter.
19. Another note was received some time later, in which the jury again said it could not reach a unanimous decision with respect to the remaining count. Some short evidence was taken from the foreperson, who did not think a unanimous verdict could be reached, even with the benefit of further time to deliberate. The jury was then directed as follows: There is a point however, under the legislation of the state, that I can take a majority verdict. Now this is where the direction comes in. So I direct you that should you continue to be unable to reach a unanimous verdict you may return and I must accept a verdict of eleven of you as a verdict of the jury in this case. However you should consider that it is preferable that your verdict be unanimous and that you should continue to strive to reach a unanimous verdict. Experience has shown that juries can often agree if given more time to consider and discuss the issues. But if, after calmly considering the evidence, and listening to the opinions of other jurors, you cannot honestly agree with the conclusion of other jurors you must give effect to your own view of the evidence. Each of you has either sworn or affirmed that you will give a true verdict according to the evidence. That is an important responsibility. You must fulfil it to the best of your ability. Each of you takes into your jury room your individual experience and wisdom and you are expected to judge the evidence fairly and impartially in that light. You also have a duty to listen carefully and objectively to the views of every one of your fellow jurors. You should calmly weigh up one another's opinions about the evidence and test them by discussion. Calm and objective discussion of the evidence often leads to a better understanding of the differences of opinion which you may have and may convince you that your original opinion was wrong. That is not of course to suggest that you can consistently with your oath or affirmation as a juror join in the verdict if you do not honestly and genuinely think that it is the correct one. Again experience has shown that often jurors are able to agree in the end if they are given more time to consider and discuss the evidence. For that reason Judges usually request juries to re-examine the matters on which they are in disagreement and to make a further attempt to reach a verdict. As I have said you should continue your deliberations with a view to reaching a unanimous verdict. However if that becomes plainly impossible, but you are able to reach a verdict by agreement of eleven of you, you may return such a majority verdict in this case. That is to say a verdict of eleven out of twelve of you. These alternative ways are the only ways in which you may return a verdict according to law. That is either unanimous or eleven out of twelve.
20. The jury again retired. About 17 minutes later a verdict of guilty was returned to count 2. The transcript does not make clear whether it was a majority or unanimous verdict.
21. It is against that background that the appellant's complaint concerning the trial judge's refusal to give a Markuleski direction for a second time falls to be considered.
22. The appellant submits that this was a "word against word" case and, in circumstances where the verdicts returned by the jury to counts 1 and 3 "reflect a fundamental lack of confidence in the Complainant as a reliable witness", a second Markuleski direction was required to reinforce the earlier direction, and highlight the "danger at that stage of inconsistent verdicts emerging". It is submitted that the failure to repeat the direction led to or facilitated a miscarriage of justice.
23. The flaw in the appellant's argument is that the verdicts returned to counts 1 and 3 do not inevitably reflect a rejection of the complainant as a truthful witness. Nothing more can be taken from the verdicts of not guilty returned with respect to those counts than that the jury were not satisfied that the Crown had proven each of the elements for each of the charges to the very high criminal standard of proof.
24. The jury had been directed in the course of the summing up to consider each of the three counts separately, and to do so carefully examining the evidence of the complainant to determine its reliability. In that context the jury were directed that, if there was a doubt about that leading to a verdict of not guilty on any count, it should have regard to that conclusion in its consideration of the remaining count or counts. The jury had expressed no confusion about those directions, and had sought no clarification of them. It must be assumed that the jury understood the directions, and followed them. There was therefore no proper reason to repeat or enlarge upon the direction.
25. Had the trial judge singled out the Markuleski direction, alone of all the other directions given during the summing up, to give again, and to repeat it in conjunction with an exhortation to endeavour to return a verdict - the Black direction - the jury would probably have understood that it was being told to return the same verdict for count 2 as had been returned for counts 1 and 3. Directing the jury in that way at that stage of the proceedings would have been an error.
26. There was no error in declining to give unnecessary emphasis to one of a range of directions properly given during the ordinary course of the summing up. Repetition was neither necessary nor appropriate.
27. I would dismiss grounds 2 and 3.

Ground 1: "The jury's guilty verdict in relation to Count 2 on the Indictment was inconsistent with their [sic] not guilty verdicts in relation to Counts 1 and 3 on the Indictment and therefore an unsafe and unsatisfactory verdict resulting in a miscarriage of justice"

Ground 4: "The jury's verdict of guilty in relation to Count 2 on the Indictment was unreasonable having regard to the evidence."

1. The first part of ground 1, the part that complains that the verdicts are inconsistent, is based upon the same mistaken assumption as that which underpins grounds 2 and 3; that, in returning verdicts of not guilty to counts 1 and 3, the jury must necessarily have rejected the complainant as a truthful witness.
2. The appellant has approached LC's evidence in the same way as he approached the cross-examination of Detective Senior Constable Davis; that is, by suggesting that any inconsistency in the complainant's evidence is only explained as "a lie" or "a false allegation". On that basis, the appellant contends that it was not open to the jury to return a verdict of guilty to count 2, in the face of its conclusions as to counts 1 and 3, and the doubt the jury had about the complainant's reliability should have informed the verdict returned with respect to count 2.
3. However, there are many ways in which an inconsistency in the evidence of a witness may be understood; a lie is only one possible explanation. That proposition was made clear in MFA v The Queen (2002) 213 CLR 606 at [35], wherein it was said that it is erroneous to conclude that, where there are multiple offences resting on the evidence of a single complainant, any verdicts of not guilty reflect the view that the complainant was untruthful or unreliable. It is not necessary for a jury to "accept or reject the lot" in such a case (at [89]), a jury being entitled to accept or reject a witness' evidence, in whole or in part.
4. The question of any inconsistency between the verdicts must be considered in a principled way, rather than by making and acting upon an assumption about a wholesale rejection by the jury of the complainant's evidence.
5. The test is one of logic and reasonableness, expressed by the High Court in Mackenzie v R (1996) 190 CLR 348 at 366; [1996] HCA 35 (quoting from R v Stone (Court of Criminal Appeal (UK), Devlin J, 13 December 1954, unrep) with approval): "[The appellant] must satisfy the court that the two verdicts cannot stand together, meaning thereby that no reasonable jury who had applied their mind properly to the facts in the case could have arrived at the conclusion, and once one assumes that they are an unreasonable jury, or they could not have reasonably come to the conclusion, then the convictions cannot stand."
6. In Roos v R [2019] NSWCCA 67 Gleeson JA set out a helpful summary of further authority on the point at [42] - [45].
7. There is a logical and reasonable explanation for the differing verdicts returned with respect to counts 1 and 2, resting in the distinction between the element of sexual gratification that applied to the former, but not to the latter. The jury were directed by the trial judge in relation to count 1 that for an assault to be indecent the Crown had to prove beyond reasonable doubt that there was a sexual connotation or overtone to the act.
8. The Crown case rested upon the jury inferring that there was a sexual purpose to the touching based upon the area of the complainant's body touched, the penis; and upon what followed, the alleged digital penetration. However, it was open to the jury to accept that the appellant had touched the complainant's penis as he described in his evidence but, given the context in which the touching occurred, that of an adult family member bathing a young child, not to accept beyond reasonable doubt that the touching was for a sexual purpose.
9. There was no equivalent element to be proved with respect to count 2; the purpose of the digital penetration was irrelevant. If the jury accepted that the appellant had penetrated the complainant's anus to any degree with his finger, and that it was done deliberately, the reason for the penetration did not matter.
10. Although the appellant submitted in this Court that it was inconceivable that an adult would commit an act of that nature on a child without a sexual purpose, such cases are not unknown. In R v Dunn (Court of Criminal Appeal (NSW), 15 April 1992, unrep) a teenage babysitter, in a fit of irritation with her 3 month old charge, and when affected by drugs, forced her finger into the child's anus after the baby defecated in the bath. Similarly, in Trevor Essex v R [2013] NSWCCA 11, the applicant was convicted of an offence of sexual intercourse with a child under 10 years after he thrust the nozzle of a garden hose into the vagina of a three year old child, in the course of "hosing her down" after she had soiled her underwear.
11. For count 2, as distinct from count 1, the jury had only to be satisfied of the deliberate act, and not of any sexual motivation attaching to it. The availability of a conclusion that the Crown had failed to prove a sexual connotation in relation to count 1 provides a logical and reasonable basis for the jury to acquit the appellant on that count.
12. There is also a logical and reasonable basis upon which the jury could have distinguished between counts 2 and 3, that being the evidence of complaint.
13. The complainant had told his mother only that the appellant had put his finger into his bottom; he did not say that it occurred more than once. Mrs C said she did not ask questions of her son. LC told Dr Rallings broadly the same thing as he told his mother. The doctor's evidence was that, had LC said that this occurred more than once, he would have made a note of it. Each of Mrs C, Dr Rallings, and Detective Senior Constable Davis were cross-examined fairly aggressively on this aspect of the complaint evidence, and the fact that it was an issue in the trial would have been very plain to the jury.
14. The jury had been directed that, if it was satisfied that the complaints to Mrs C and Dr Rallings had been made by LC, that evidence could be used as evidence independent of the complainant's evidence about the alleged offence (pursuant to s 66 of the Evidence Act 1995 (NSW)). The trial judge said in summing up: If you find that the complaint was made substantially to the effect that [the appellant] put his finger into [the complainant's] anus and rubbed [the complainant's] penis, then you can use evidence of what was said in the complaint as some evidence that such an assault did occur. That is, you can use it as some evidence independent of the evidence given to you of that incident by [the complainant]. The law says that, because of the circumstances in which the complaint was made, the jury is entitled to use what was said in that complaint as evidence of the truth of what a complainant such as [LC] alleged against a person. A jury is entitled to find that a complaint was made at a time and in a manner that would indicate that the allegation was reliable. That is, that the allegation is less likely to have been fabricated by the complainant and more likely to be accurate. It is a matter for you whether you draw that conclusion in this particular case and so treat the complaint as evidence of the alleged assault by [the appellant], in addition to the evidence that has been given about it in this trial. If you do use it as some evidence of the assault that is the subject of the charge, then what weight you give it again is a matter for you. Whether you do use the evidence of complaint in that way or not, the Crown asserts that it has another purpose. The Crown contends that the fact that [the complainant] raised the allegation against his grandfather at the time and in a manner that he did would lead you to accept the evidence he gave in the recording at the end of last year. In other words, it makes his evidence more believable than if he had not raised the allegations as he did. Again, it is for you to decide whether these complaints were made. But if you are satisfied that they were, then the question you should ask yourself is, did [the complainant] act in the way you would expect him to act if he had been assaulted as he said he was? Was what he did the sort of conduct you would expect of a person who has been assaulted in that way? Do you think that [the complainant] has done what you would expect someone in his position to do that may support the Crown case because you may find there is a consistency between [the complainant's] conduct and the allegation that he makes against [the appellant]. On the other hand, if [the complainant] has not acted in the way you would have expected someone to act after being assaulted as he described, then that may indicate that the allegation is false. You will recall that there was some differences in the accounts given by [the complainant] of what occurred with his grandfather. First, as to the number of times the accused put his finger into his anus and, secondly, whether there was any touching of his penis. In regard to those differences in the account he has given, I need to draw your attention to four particular matters. These are four things that experience shows. First, people may not remember all the details of a sexual offence or may not describe a sexual offence in the same way each time. Secondly, trauma may affect people differently, including affecting how they recall events. Thirdly, it is common for there to be differences in accounts of a sexual offence. Fourthly, both truthful and untruthful accounts of a sexual offence may contain differences. It is up to you to decide whether or not any difference in [the complainant's] account are important in assessing the complainant's truthfulness and reliability and when I say "complainant" I mean [LC].
15. The complaint and the circumstances in which it came to be made may properly have been regarded by the jury as highly significant.
16. Firstly, the complaint to Mrs C was made at what might have been regarded as the first reasonable opportunity after the appellant had ended his visit to the C family home and gone away. Secondly, it was made to Mrs C as the complainant got out of the shower on 11 October 2017. This timing may have been regarded as meaningful: it is likely that LC may have been unwilling to speak to his mother when the appellant was still present; and it is possible that he would have thought about his bath of the previous evening when washing (albeit in the shower) the next evening. The circumstances of the complaint were such that the jury may have regarded it as compelling evidence.
17. Further, the terms of the complaint to Mrs C, at least insofar as it could provide evidence supportive of count 2, might also have been regarded by the jury as compelling. LC told his mother that his grandpa had "hurt" him in the bath. He told his mother "Grandpa's finger went in my bottom and I could feel it in my tummy." He said he "didn't know whether he could scream or cry because it was his grandpa". The complainant's assertion that he could feel what was done to him in his tummy may well have struck the jury as startlingly consistent with how a child penetrated in that way would likely experience the sensation. His evidence of internal conflict, expressed by his confusion at not knowing whether he could cry out because it was a loved and trusted adult who was hurting him, may also have struck the jury as having the ring of truth.
18. This evidence, important in the context of the case, applied to count 2 but not to count 3, and is sufficient to provide a proper basis upon which the jury could acquit the appellant of count 3, but convict him of count 2.
19. I do not conclude that the verdict returned in relation to count 2 cannot stand with the verdicts returned for counts 1 and 3. On the contrary, the distinction drawn between the allegations points to the jurors carefully examining the evidence available to support each charge and applying the law as the trial judge gave it to them to the facts as they found them to be. It is reasonable to conclude that, given the stronger case advanced by the Crown in support of count 2, the evidence for that count alone satisfied the jury of the appellant's guilt to the very high standard of proof beyond reasonable doubt.
20. That conclusion necessarily undermines the force of the appellant's contention that the verdict on count 2 is "unsafe and unsatisfactory", "unreasonable" and not supported by the evidence.
21. In assessing the appellant's arguments in that regard it is not for this Court to supplant the jury's verdict with its own. The question is whether, having assessed the whole of the evidence that was before the jury, it was open to the jury to be satisfied of the appellant's guilt to the criminal standard: M v The Queen (1994) 181 CLR 487; [1994] HCA 63 at 493; MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53 at [58]; SKA v The Queen (2011) 243 CLR 400; 2011 HCA 13 at [405] - [406]. In Pell v The Queen [2020] HCA 12, the High Court said, at [39]: The function of the court of criminal appeal in determining a ground that contends that the verdict of the jury is unreasonable or cannot be supported having regard to the evidence, in a case such as the present, proceeds upon the assumption that the evidence of the complainant was assessed by the jury to be credible and reliable. The court examines the record to see whether, notwithstanding that assessment - either by reason of inconsistencies, discrepancies, or other inadequacy; or in light of other evidence - the court is satisfied that the jury, acting rationally, ought nonetheless to have entertained a reasonable doubt as to proof of guilt. [Footnotes omitted]
22. That task is to be approached bearing firmly in mind the primacy of the jury in seeing the whole of the evidence placed before the trial court, an advantage that cannot be replicated by an appellate court. In The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35 the High Court gave particular emphasis to the fundamental role of the jury in our system of criminal justice, at [65] - [66]: It is fundamental to our system of criminal justice in relation to allegations of serious crimes tried by jury that the jury is "the constitutional tribunal for deciding issues of fact." Given the central place of the jury trial in the administration of criminal justice over the centuries, and the abiding importance of the role of the jury as representative of the community in that respect, the setting aside of a jury's verdict on the ground that it is "unreasonable" within the meaning of s 668E(1) of the Criminal Code is a serious step, not to be taken without particular regard to the advantage enjoyed by the jury over a court of appeal which has not seen or heard the witnesses called at trial. Further, the boundaries of reasonableness within which the jury's function is to be performed should not be narrowed in a hard and fast way by the considerations expressed in the passages from the reasons of the Court of Appeal explaining its disposition of the appeal. With those considerations in mind, a court of criminal appeal is not to substitute trial by an appeal court for trial by jury. Where there is an appeal against conviction on the ground that the verdict was unreasonable, the ultimate question for the appeal court "must always be whether the [appeal] court 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."[Footnotes omitted]
23. The appellant submits that the advantage a jury might ordinarily have over an appellate court is of lesser significance in this instance because, as a consequence of the operation of the Child Sexual Offence Evidence Pilot in operation at Newcastle District Court in 2019, the whole of the complainant's evidence was seen by the jury in the form of pre-recorded evidence, and can be seen in the same way by this Court.
24. That submission overlooks the importance of an assessment of the whole of the evidence in the context of the trial. Whilst careful examination of the evidence of the complainant is of considerable significance, the jury was rightly told by the trial judge to consider the whole of the evidence placed before it when deliberating upon the verdicts to be returned.
25. This Court is in no position to replicate the experience of the jury in seeing the evidence of the complainant by viewing the recording of his evidence: the jury continues to have enjoyed a significant advantage this Court cannot have. The jury saw each witness give evidence; the jurors were able to hear tone and nuance in the spoken word that is not available to the appellate court with respect to the evidence of those witnesses whose testimony was not electronically recorded, and which a transcript can never reflect. The jury was able to observe the gestures and facial expressions of witnesses; and its members were able to observe the appellant's responses to evidence as it was given.
26. Although this Court was urged by the appellant to view the recording of the complainant's evidence, I saw no proper purpose in doing so. Whilst there are some parts of the complainant's evidence where no verbal answer was provided by LC to a question asked of him (in the JIRT interview), or where he demonstrates by gesture, those deficiencies in the transcripts were either supplied by description at trial, or by the Part A Summary of Evidence filed relevant to the appeal, the accuracy of which was not disputed by the appellant.
27. It is not the law that the mere existence of a recording of a witness' evidence is sufficient for an appellate court to view the recording. In Pell v The Queen, the High Court rejected a submission from the respondent that, where a recording exists, the court should view it. It said, at [36] - [37]: The position maintained by the respondent is not one that should generally be adopted by courts of criminal appeal. In SKA, French CJ, Gummow and Kiefel JJ rejected the suggestion that the mere availability of a video-recording of a witness' evidence at trial meant that the proper discharge of the function of the appellate court, to make its independent assessment of the evidence, necessitated a viewing of the recording. There may be cases where there is something particular in the video-recording that is apt to affect an appellate court's assessment of the evidence, which can only be discerned visually or by sound. In such cases, there will be a real forensic purpose to the appellate court's examination of the videorecording. But such cases will be exceptional, and ordinarily it would be expected that the forensic purpose that justifies such a course will be adopted by the parties, rather than upon independent scrutiny by the members of the court. Secondly, the assessment of the credibility of a witness by the jury on the basis of what it has seen and heard of a witness in the context of the trial is within the province of the jury as representative of the community. Just as the performance by a court of criminal appeal of its functions does not involve the substitution of trial by an appeal court for trial by a jury, so, generally speaking, the appeal court should not seek to duplicate the function of the jury in its assessment of the credibility of the witnesses where that assessment is dependent upon the evaluation of the witnesses in the witness-box. The jury performs its function on the basis that its decisions are made unanimously, and after the benefit of sharing the jurors' subjective assessments of the witnesses. Judges of courts of criminal appeal do not perform the same function in the same way as the jury, or with the same advantages that the jury brings to the discharge of its function. [Footnotes omitted]
28. In support of the claim that the verdict is unsupportable, the appellant points to the complainant's normality on the evening of 10 October 2017, when he rode his bicycle without experiencing pain in his stomach or bottom, when he ate cake happily, and played with his toys; and again on the morning of his sixth birthday, when he watched videos with the appellant and then accompanied him for breakfast without demur. The appellant argues that the complainant's lack of pain, and his ordinary demeanour following the alleged assault, is sufficient to cause this Court to set aside the verdict returned for count 2.
29. As to LC's failure to complain of any ongoing pain, this is not persuasive on this aspect of the matter. The complainant only ever said that the act of penetration had hurt him in his tummy as it took place, and that it had later hurt when "doing a poo". He had not said that the pain was on-going, or such as to make sitting down uncomfortable. That he was able to engage in ordinary activities without experiencing pain or discomfort does not advance the appellant's case.
30. As to the complainant's ordinary manner after the bath, the appellant's submission on that point fails to take into account the now well understood dynamics of sexual or other assault within a family context, a dynamic suggested by the terms of LC's complaint to his mother: he didn't know whether he could scream or cry because it was his grandpa. The jurors were entitled and urged to have regard in assessing the evidence to their own life experience and understanding of the ways in which people, including the very young, conduct themselves. That ordinary knowledge is likely to have included an understanding of the confusion of a child who suffers some hurt at the hands of a much loved authority figure; and of the capacity of all human beings to continue with a valued relationship and even take joy from it despite some harm having been done.
31. Although stereotypes as to how a complainant "should" behave after having been assaulted are less prevalent than was formerly the case, it remains important, as Button J said at [533] of Khamis v R; Hussain v R [2018] NSWCCA 131, to take care not to impose stereotypical assumptions upon an individual complainant.
32. In any event, these were matters raised by the appellant before the jury; the question of the significance of the complainant's conduct on 10 and 11 October 2017 was a matter for the jury to assess. It remained open to the jury to accept the complainant's evidence in support of count 2 as reliable.
33. The appellant also points to inconsistencies in the complainant's evidence as demonstrating that he was "clearly untruthful" and told "blatant lies", but I would reject that strident language as demonstrating no more than a misunderstanding of the way very young children remember experiences and recall them later.
34. Some of the "blatant lies" the appellant contends LC told can be readily understood as the product of confusion, misunderstanding, or tiredness (at the end of the complainant's cross-examination). None of them dictate that LC should have been regarded as an unreliable witness with respect to the elements of count 2.
35. The appellant asserts that LC's references to both wearing pyjamas and his soccer shirt to bed exposed him as a liar, but it is more likely that the explanation for the inconsistency is in the complainant's habit, on the evidence of Mrs C, of wearing day clothes to bed, and frequently his soccer shirt. In that sense, his soccer shirt was a part of his sleepwear, or pyjamas.
36. The complainant's references to his mother and sister being at home asleep at the time of the bath time incident, and also to being away at dancing, are matters to which the jury would have given attention, but bearing in mind the very young age of LC, inconsistency in peripheral details such as these may not have been seen by its members as particularly important. Such a conclusion is open.
37. LC's assertion that he told his mother about what the appellant had done after he got out of the bath is likely to have been understood by the jury as an issue of language use, rather than as a blatant lie as the appellant contends. LC made his complaint to his mother when he got out of the shower on the evening following the incident, rather than when he got out of the bath on the night of the incident, or when he got out of the bath on the following night. To a very young child, whether the evening washing ritual is named as a bath or a shower probably is of little moment; the concept is adequately expressed by the word "bath". The jury was likely to have been constituted by at least some individuals with experience of the way in which young children communicate, and probably readily understood this. That LC complained to his mother of what had happened during the previous evening's bath at his next bath-time might have been seen as a feature pointing to the truthfulness of the complaint.
38. Finally, the appellant submitted that it was physically impossible for a man to insert his finger into the anus of a child who was sitting down in the bath. I do not accept that submission as having any foundation. Doubtless the jury also concluded that it would be an easy thing for an older, stronger individual to slide a hand under a seated naked child and digitally penetrate that child's anus.
39. What may have been more significant to the jury overall, applying its collective wisdom, life experience, and common sense, is not that a 6 and 7 year old child was not entirely accurate in his recollection of surrounding detail, but that a child of such a young age, disturbed by an act that had hurt him and which he was uncomfortable about, told his mother about it at the first reasonable opportunity and in compelling terms and, thereafter, consistently repeated the allegation, to a doctor, a police officer, and to a barrister, even when that barrister suggested to him that it had not happened.
40. Having carefully examined the whole of the evidence as it is recorded on transcript, and looked at the exhibits, I regard the verdict returned by the jury as properly open on the evidence.
41. It was open to the jury, informed by the appellant's cross-examination of witnesses, and a closing address that highlighted all of the identified inconsistencies, asserted lies, and suggested improbabilities, to accept the complainant's evidence, supported as it was by what the jury may well have regarded as compelling complaint evidence.
42. In my conclusion, the verdict returned by the jury was open to it. I would dismiss grounds 1 and 4.
43. Accordingly, I propose the following order: 1. Leave to appeal against conviction is granted. 2. Appeal dismissed.

the crown Appeal against sentence

1. (In this appeal, the Crown is the appellant, and RC is the respondent. I will refer to each in that way.)
2. After the jury returned its verdict of guilty to count 2 of the indictment the proceedings on sentence were adjourned to 27 September 2019. Having heard evidence and submissions that day Smith SC DCJ convicted and sentenced the respondent for count 2, the single count of sexual intercourse with a child under 10 years contrary to s 66A(1) of the Crimes Act. A community corrections order for a period of 18 months was imposed. That sentence was confirmed by the sentencing court on 8 November 2019.
3. On that same day a Deputy Director of Public Prosecutions signed a Notice of Appeal against that sentence, raising one ground, that the sentence imposed was manifestly inadequate.

The Crown Case on Sentence

1. Although the matter proceeded to the verdict of a jury, the Crown tendered a statement of facts on sentence, which the respondent accepted as "very fair and consistent with what" the sentencing judge would find.
2. The facts of the offence were given in that document as: When bathing the complainant the offender inserted a finger into the anus of the complainant. The complainant felt pain.
3. Otherwise, the facts constituted a brief statement of the family relationships, and circumstances surrounding the offence.
4. The evidence at trial had established that the respondent had no criminal convictions.
5. The Crown submitted that the offending conduct fell in the "mid to upper low range" for offending of that kind, and referred the court to R v ND [2016] NSWCCA 103 for a useful statement of the relevant sentencing principles. It was submitted that only a full-time custodial sentence would adequately reflect the gravity of the offending.

The Respondent's Case on Sentence

1. The respondent gave evidence before the sentencing judge on 27 September 2019. He gave his date of birth, which made him 74 years of age at the time of the commission of the offence, and 76 years of age when sentenced.
2. He deposed that he had instructed his legal representatives to file an appeal against his conviction.
3. The respondent said that, at the suggestion of his representatives, he had seen a clinical psychologist, Danielle Clout, and had given her an honest account of his circumstances. He had read the report prepared by Dr Clout and regarded it as correct in what was said of him. He also produced a summary obtained from his general practitioner, which set out the respondent's current medication (although not the nature of the conditions each treated), and past treatment history.
4. A series of photographs of the respondent's grandchildren and great-grandchild were tendered, and the respondent described the close relationships he enjoyed with the children, and the reliance placed upon him by the parents of the children for assistance with childcare. He had on occasion taken some of his grandchildren overseas for holidays. The respondent said that he had never been accused of inappropriate conduct by any of his descendants. He said that he loved and was devoted to his grandchildren and great-grandchild and his relationships with them were very important.
5. Counsel for the respondent asked him about his feelings at the prospect of being sentenced to a term of imprisonment. Noting that he felt "pretty bloody awful" about it, the respondent said this was because: Well, for one thing I know that it didn't happen but I understand that the jury said it did so I'm stuck with that sort of judicial guilt, nothing to do with moral guilt obviously because there's no - there's none. So I would be fearful in prison because I'd be regarded as a sex offender. […] And if I'm classified as a sex offender, I'm likely to be subjected to violence of some sort. I've been - the worst thing is being deprived of your ability to interact with my grandchildren and depriving them of the grandfather that's looked after them for a long time.
6. The respondent tendered a report from Dr Clout dated 4 September 2019, and five character references.
7. Dr Clout took a history from the respondent, which included a happy childhood growing up in a close and supportive family, and a good education, including university studies in law, and five years training for the priesthood. He abandoned his intentions of joining the ministry after developing romantic feelings for a nurse whom he had met when hospitalised with a severe viral condition.
8. The respondent went on to have a career in the public sector, initially with the Department of Foreign Affairs in overseas missions, and later heading up various departmental agencies in Australia. He retired in 2004 and subsequently became active as a cyclist and motorcyclist, and in the care of his grandchildren.
9. The respondent said that, although his relationship with his first wife had broken down, as a consequence of the pressure of his overseas postings, he had always been close to his children as they were growing up. He remained very close to his oldest son. The loss of his relationship with his youngest son, KC, and KC's family, as a consequence of the allegation against him was tragic and distressing.
10. A second marriage also broke down, although the respondent said he was close to his step-children, and the children of his step-daughter, whom he cared for from time to time.
11. The respondent gave a history of drinking "too much", a pattern that had increased following the return of the jury's verdict.
12. The respondent's general health was reported to be good for his age, although he told Dr Clout that he suffered from chronic bronchitis, a blood pressure condition, and a cholesterol condition, all of which were managed with medication. He had been involved in a motorcycle accident in 2016 and is now "slower" as a consequence.
13. RC had no history of psychological disorder other than ordinary distress at past sad life events, but felt that he had become depressed since the verdict against him was returned. He described feelings of lethargy, insomnia, and a lack of interest in things around him. Dr Clout felt that the symptoms were consistent with a moderate level of a Major Depressive Disorder, whilst an Alcohol Use Disorder was also likely to be present.
14. Various psychometric tests were administered to the respondent, revealing that he tended to deny or minimise character flaws; was at high risk of alcohol abuse; and, although his scores on the "criminal orientation scale" were elevated, he was at low risk of re-offending.
15. Dr Clout felt that the respondent would benefit from psychological counselling to address his depression and alcohol misuse. She considered a sentence of full-time imprisonment would be deleterious to the respondent, as it would deprive him of his community based coping mechanisms. She thought that the respondent's age and health would make him more vulnerable in custody, and his depressive condition would cause him to experience a prison environment as more onerous than for an individual without that condition.
16. The character testimonials, all from family members, spoke of the respondent in highly favourable terms, and were supportive of his proclaimed innocence.
17. The respondent's submission to the sentencing judge was that the matter should be assessed as at the very lowest end of the range of such cases, and a community corrections order would be an adequate sentence in all of the circumstances.

The Conclusions of the Sentencing Judge

1. The sentencing judge proceeded to impose sentence following the conclusion of evidence and submissions, giving his remarks ex tempore.
2. His Honour set out the maximum penalty of life imprisonment that attaches to an offence contrary to s 66A(1) of the Crimes Act, and noted the applicable 15 year standard non-parole period ("SNPP"), which he accepted were the relevant statutory guideposts.
3. The relevance of general deterrence in determining sentence for an offence contrary to s 66A(1) was noted.
4. After referring to the facts of the offence and the respondent's personal circumstances and, particularly, his former good character and close involvement with family, the sentencing judge concluded that the respondent "is very unlikely ever to re-offend". The sentencing judge described the offence as "completely anomalous behaviour" and concluded that there was no need for an element of specific deterrence to be reflected in the sentence to be imposed.
5. He thought that the respondent had favourable prospects of rehabilitation.
6. The sentencing judge observed that the gravity of the offending was heightened by the fact that the offence had been committed in the complainant's home, and at a time when the respondent had been in a position of trust and authority over the complainant. He concluded however, that the offence was committed spontaneously, and was of fleeting duration. Whilst the offence had caused some pain to the complainant, it was temporary. His Honour concluded that the evidence of the circumstances surrounding the offending "was inconsistent at least with any significant psychological harm" suffered to date by the complainant.
7. Overall, his Honour found that the offending fell at "the very lowest level of objective gravity" and, taking into account the respondent's personal circumstances, including his fear of harm in prison, and the loss of his relationship with the complainant and his family, concluded that "this is not an offence for which there is no alternative other than a sentence of imprisonment".
8. Although no assessment had been conducted by the Community Corrections Office, and no pre-sentencing assessment report had been prepared, the sentencing judge concluded: […] a Community Correction Order will, in the circumstances of this case, be a considerable and adequate punishment to meet the twin purposes of general deterrence and denunciation, and will otherwise meet the remaining purposes set out in s 3A of the Crimes (Sentencing Procedure) Act 1999.
9. He specified 18 months as the appropriate term for a community corrections order ("CCO") and noted that, although the respondent did not live in New South Wales, he was prepared to travel to the State to undertake the work component of the CCO which his Honour said he intended to impose as an additional burden to be borne as part of punishment.
10. The parties drew his Honour's attention to s 89(4) of the Crimes (Sentencing Procedure) Act 1999 (NSW) (the "CSP Act"), which provides: The sentencing court must not impose a community service work condition on a community correction order unless an assessment report states that the offender is suitable to be the subject of such a condition.
11. The sentencing judge then determined that he would impose the CCO as indicated, and later impose a work service condition after receiving a report. He thereafter ordered: 1. Pursuant to s 8 of the Crimes (Sentencing Procedure) Act I make a Community Corrections Order for a period of 18 months commencing today. 2. The standard conditions of the order apply. (a) The offender must not commit any offence. (b) The offender must appear before the Court if called on to do so at any time during the term of the order. 3. I order a report to be prepared concerning the suitability that the offender be subject to a community service work condition. 4. I direct the offender to attend the Court registry where a copy of this order will be explained and given to him. And by 4pm on 4 October 2019, to attend the office of Community Corrections at Queanbeyan for the purposes of obtaining a report pursuant to my earlier order.
12. The matter was adjourned to 8 November 2019 for sentence part-heard before his Honour. The respondent entered the CCO on 27 September 2019.
13. On 8 November 2019 a short assessment from the Community Corrections Service dated 22 October 2019 was before the court. It noted that, although the respondent was assessed as suitable to undertake community service work, that assessment could not be made as no agency was available to offer work to a convicted child sex offender.
14. Although the transcript is incomplete, it appears that the Crown submitted both that the sentencing court was functus officio, as the respondent had entered the CCO on the date on which it was imposed; and that the sentence imposed was inadequate.
15. Since no community work component could be imposed upon the respondent, the sentencing judge simply confirmed orders 1 and 2 of 27 September 2019.
16. That is the sentence the Crown now appeals against.

The Crown's Submissions on the Inadequacy Appeal

1. The Crown acknowledged that, to succeed in its appeal, it had to establish that the sentence imposed was unreasonable or plainly unjust in a sentencing environment where judges at first instance have a wide discretion, on the basis that the discretion is exercised in accordance with proper principle: R v Dinsdale (2000) 202 CLR 321; [2000] HCA 54 at 325; Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [25]; Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45 at 538 [58].
2. The Crown argues that the sentencing process miscarried because the sentencing judge imposed a CCO which he intended to have a community work component to it without the necessary information to properly determine whether that penalty was both suitable and available. As it happened, the work component was not available and, although it is clear his Honour intended the respondent to bear that additional burden as part of the punishment imposed upon him, it could not be imposed.
3. This led to the imposition of a sentence which, manifestly inadequate with a work component, became even more so without it.
4. It was submitted that the sentencing judge's characterisation of the gravity of the offence as at "the very lowest level" of objective seriousness was not open on the evidence, particularly bearing in mind that the offence caused the complainant pain, that it occurred in what should have been the safety of his home, that it was committed by a trusted adult, and that the complainant was, at almost 6 years old, significantly younger than the upper end of the age range (of just short of 10 years old) to which s 66A(1) applies. The erroneous assessment of the objective gravity of the offence led, in the Crown's submission, to a sentence that failed to reflect the true gravity of the crime.
5. The Court was referred to R v Qi [2019] NSWCCA 73, where Button J said of a different offence carrying a maximum sentence of life imprisonment, (at [72] - [74]): First, the maximum penalty for this offence is imprisonment for life without possibility of parole. That maximum penalty speaks for itself in terms of the view of Parliament about the seriousness of supplying a large commercial quantity of a prohibited drug. Without purporting to promulgate any sort of prescriptive rule, an inevitable function of that maximum penalty is that, as a matter of common sense, it would only be in very exceptional circumstances that a sentence other than full-time imprisonment would be imposed for this offence. And the position of the respondent, whilst persuasive and deserving of sympathy, cannot be characterised as exceptional, let alone very exceptional. In my opinion, the above general proposition can be tested - again, without being mechanistic or prescriptive - by considering some other offences in which Parliament has provided a maximum penalty of imprisonment for life: murder (s 19A of the Crimes Act 1900 (NSW)); sexual intercourse with a child under 10 (s 66A of the same Act); and aggravated sexual intercourse without consent in company (s 61JA of the same Act). I accept, of course, that sentencing for different offences that share the same maximum penalty is not to be thought of as needing to proceed in "lockstep". But it is instructive, I think, that it is inconceivable that an ICO could be imposed for any of those other offences, other than in very exceptional circumstances.
6. The Crown contended that no exceptional circumstances were identified here, and none existed. The respondent's depressive condition was situational, having arisen as a consequence of his conviction, and there was no nexus to the offending. Whilst imprisonment could have an adverse impact on it, the reasons for that were unremarkable, that the respondent would be deprived of family, hobbies, and community based activities. He had some health concerns, but nothing of a dangerous nature, and nothing that could not be adequately treated in the prison system.
7. By reference to sentencing statistics held by the Judicial Commission, and by other decided cases, the Crown argues that the sentence imposed upon the respondent is manifestly inadequate.
8. The respondent originally focused on his own appeal. Limited argument was directed to the Crown's appeal, and no evidence was placed before the Court to which regard might be had in the event the Court proceeded to re-sentence. Leave was given to him to provide that evidence after the conclusion of the hearing, and evidence and submissions were later filed with the Court.
9. The respondent's principal argument is that, should the Court be of the view that error occurred in the imposition of sentence at first instance, his advanced age and ill-health, in the face of the international medical emergency which is the present COVID-19 pandemic, would justify the Court in exercising the residual discretion not to re-sentence the respondent.
10. The respondent relies upon an affidavit from Dr Saidul Ansary of 31 March 2020, together with a statement from NSW Corrective Services outlining its response to the COVID-19 pandemic.
11. Dr Ansary is a respiratory physician who has treated the respondent since 2014, and reviewed his medical situation in light of the pandemic. The doctor notes that the respondent suffers from "bronchiectasis", although no information is given (other than by way of submission) as to the nature and effect of that condition and, specifically, its impact on the respondent.
12. Dr Ansary deposed that the respondent is included in the category of persons particularly vulnerable to COVID-19 infection and mortality due to his respiratory issues, systemic hypertension, kidney disease, and his advanced age. In a closed custodial setting there can be additional challenges in managing the risk of infection.
13. The response of NSW Corrective Services to the pandemic is to acknowledge the specific risk of contagion for staff and inmates, and to set out measures intended to mitigate the risk. Changes have been made (from February 2020) to limit visitors to prisons (a group widely defined to include contractors and service providers), particularly from persons who may pose an increased risk of transmitting COVID-19, such as those recently returned from international travel. Since March 2020 all visits to inmates have been temporarily suspended, with telephone and audio-visual conferencing facilities made available instead. Screening is carried out on all new inmates to the prison system, and movement about and between prisons has been minimised.
14. To date, no inmate in a NSW prison has been infected with the COVID-19 virus.
15. The respondent submits that he is at greater risk of contracting COVID-19 than other prisoners if he is committed to the prison system, and faces the prospect if infected of a very poor outcome including the possibility of death. This feature, it is argued, should permit the Court to decline to interfere with the sentence even if error is established or, if a custodial term is imposed, to vary the statutory ratio in the respondent's favour pursuant to s 44 of the CSP Act.

Consideration

1. Even without turning to consideration of the specific ground of appeal advanced by the Crown it must be concluded that the sentencing exercise miscarried in the present case because of the imposition of a CCO, intended to have a work component, without an assessment report having been first ordered by the court.
2. Division 4B of Part 2 of the CSP Act makes an assessment report mandatory prior to the imposition of some community based sentencing orders. The purpose of an assessment report is made clear by s 17B(2), which provides: The purpose of an assessment report is to assist a sentencing court to determine the appropriate sentence options and conditions to impose on the offender during sentencing proceedings.
3. It is for good reason that s 17D(4) provides: The sentencing court must not impose a community service work condition on an intensive correction order or community correction order unless it has obtained an assessment report relating to the imposition of such a condition in relation to the offender.
4. The importance of obtaining a report before imposing a community based order is reinforced by s 89(4).
5. Had a report been obtained prior to the imposition of sentence in accordance with s 17C, which regulates when a report may be requested, his Honour's consideration of "appropriate sentence options" would have been informed.
6. There are practical reasons why it is important for sentencing courts to comply with s 17D(4) and s 89(4) of the CSP Act, reasons illustrated by this matter, where sentence was passed without any evidence as to the suitability of the respondent for a work condition, and the availability of work to him.
7. This procedural irregularity resulted in a sentence that was lower than the sentence that his Honour clearly intended to impose, and one which the Crown argues is manifestly inadequate.
8. The starting point for consideration of the ground of appeal advanced by the Crown is the maximum penalty that attaches to an offence of sexual intercourse with a child under 10 years - life imprisonment - and the SNPP which applies, a term of 15 years imprisonment.
9. These legislative guideposts without more demonstrate the very grave view taken by the Parliament and the community of offences contrary to s 66A of the Crimes Act. Stern sentences are required in offending involving the sexual abuse of children to protect these most vulnerable members of our community. Children, and particularly young children, have little or no capacity to protect themselves against sexual assaults. The criminal justice system must supply that protection.
10. In R v ND, a case dealing with an offence contrary to s 66A charged at a time when the maximum penalty applicable to it was a term of 25 years imprisonment, this Court (Payne JA, Price and Garling JJ) observed, at [38] - [39]: The commencement point of addressing this appeal is to identify the seriousness of an offence against s 66A of the Crimes Act. The legislation conveyed that degree of seriousness by fixing a maximum term of imprisonment of 25 years and a standard non-parole period of 15 years. The reasons for this are clear: the age of a victim, which the Crown has to prove beyond reasonable doubt as being under 10, demonstrates in and of itself, the vulnerability of the victim to offences of this kind. Further, the likelihood that such a young person would be able to resist an adult is very low. As well, Courts have acknowledged the long-term psychological effects that such conduct can have upon a child. All of these features combine to demonstrate why the legislature and the Courts regard this offence as very serious.
11. Regard must also be had to the sentencing principles of particular relevance to offences involving the sexual abuse of children. As Hoeben CJ at CL observed (with the agreement of Harrison and R A Hulme JJ), in EG v R [2015] NSWCCA 21 at [42]: General deterrence, denunciation and the protection of the community are principles of sentencing which are relevant to cases involving child sexual abuse. The concern of the courts is to send a message to those who would sexually abuse children intentionally and repeatedly that their actions will not be tolerated and that they will receive significant punishment.
12. For an offence contrary to s 66A, those principles, together with the applicable maximum penalty and SNPP, suggest that it could only be in the most extraordinary and unusual circumstances that a sentence of full-time imprisonment would not be imposed upon an offender.
13. There were no extraordinary or unusual circumstances in the respondent's case.
14. As the Crown pointed out, there was nothing in either the facts of the offending conduct, or in the respondent's subjective case, which justified the sentence that was imposed upon the respondent at first instance. That sentence is, in my conclusion, manifestly inadequate. It is so far below the range of sentences that could be justly imposed for an offence of this nature that it could tend to undermine public confidence in the proper administration of criminal justice in the sentencing of offenders for the commission of serious sexual assaults upon very young children.
15. To some extent the sentence was erroneously lenient because of the assessment made by the sentencing judge of the objective gravity of the offence. As a general principle, that is an assessment which is ordinarily best left to judges at first instance, particularly where sentence was preceded by a trial. In Mulato v R [2006] NSWCCA 282 Spigelman CJ said: Characterisation of the degree of objective seriousness of an offence is classically within the role of the sentencing judge in performing the task of finding facts and drawing inferences from those facts. This Court is very slow to determine such matters for itself or to set aside the judgment made by a first instance judge exercising a broadly based discretion. The question must be whether or not the particular characterisation which her Honour gave to the circumstances of the offence was open to her Honour.
16. Regrettably, this is a matter where the characterisation of the objective gravity was not open, and this Court must set it aside.
17. There are a number of features of the offending which elevate the gravity of the offence beyond "the very lowest level of objective gravity". The first is the age of the child; at 5 years, 11 months, and some days old the complainant was well below the upper age range encompassed by s 66A. A child of 5 or 6 years of age has even less capacity than a child of 9 years to understand the wrongness of an act of sexual intercourse, to defend him or herself from an assault, and to find the language to later make complaint. This is the vulnerability of the very young.
18. Secondly, the offence caused some pain to the complainant, pain that was of a sufficient degree that he remembered it, and complained of it the following day to his mother. There was no suggestion in the evidence that the pain was on-going, or such as to lead to impairment or discomfort in the performance of ordinary activities, such as bike riding, but what was done to the complainant hurt him, and that must be taken into account. Thirdly, the offence was committed in the complainant's home, a place where he was entitled to be safe from harm. Fourthly, the offender was someone to whom the complainant was entitled to look for protection. For an adult in a position of trust and authority to abuse that trust elevates the seriousness of the offence.
19. An offence displaying all of these features is not one which could properly be assessed as at the lowest level of gravity.
20. The absence of any evidence to establish a sexual motivation in the commission of the offence is a relevant feature to the determination of the objective gravity of the crime, and lessens it, although it cannot lead to the sort of assessment made by the sentencing judge in this matter. I have referred to Essex v R and to R v Dunn in the context of the conviction appeal. The principles each stand for are also relevant to the sentence appeal. In Dunn, Gleeson CJ said: The act of which the appellant was found guilty was by definition an act of sexual intercourse. In my view it is material, indeed most material, to take into account that the conduct in question was not done for any form of sexual gratification […].
21. Other features relevant to the assessment of gravity are, as the sentencing judge observed, the spontaneous and fleeting nature of the offence, and the fact that it was an isolated offence.
22. In my assessment this is a serious offence, albeit one which falls considerably below a level of seriousness demanding the imposition of the SNPP. It should not be necessary to endeavour to express that conclusion by reference to a position within a range, or by resorting to mathematical terminology. In PK v R [2012] NSWCCA 263 McCallum J (as her Honour then was) said at [24] - [27] (with the agreement of Macfarlan JA and Price J): The judge assessed the offence to be "slightly above" the middle of the range of objective seriousness. As already noted, those remarks were made in the context that his Honour was applying the law as it was understood before the decision of the High Court in Muldrock. […] For present purposes, it is enough to observe that, following Muldrock, whilst an assessment of the objective seriousness of the offending remains an essential aspect of the sentencing task, the sentencing court need not, and arguably should not, attempt to quantify the distance between the actual offence before the court and a putative offence in the middle of the range: see Muldrock at [29]. In saying so, I mean no criticism whatsoever of the sentencing judge in the present case. It behoves this Court to acknowledge that, prior to the decision in Muldrock, sentencing judges were not infrequently criticised by this Court for failing to make such a finding. What has been emphasised in decisions since Muldrock is that it remains important to assess the objective criminality of the offending, which has always been an essential aspect of the sentencing process. In that context, the view has been expressed that there is no vice in doing so according to a scale of seriousness: Zreika v R [2012] NSWCCA 44 at [45] per Johnson J (citing R v Koloamatangi [2011] NSWCCA 288 at [18]-[19] per Basten JA); McClellan CJ at CL agreeing at [1]; Rothman J not addressing that point (see [128] to [130]). However, as I read Muldrock, the usefulness of comparing the particular offence before the court with the hypothetical mid-point offence has been doubted.
23. I respectfully agree.

Re-sentencing and the Residual Discretion

1. Having found that his Honour was in error in imposing a sentence which was manifestly inadequate for this offence, it is now necessary to turn to the questions of re-sentencing, and the exercise of the Court's residual discretion not to interfere.
2. Crown appeals serve the purpose of clearly articulating the law, and laying down principles for the guidance and governance of sentencing courts: Green v The Queen (2011) 244 CLR 462; [2011] HCA 49 at [1] and, at [36], where the High Court said: A primary consideration relevant to the exercise of the residual discretion is the purpose of Crown appeals under s 5D which, as observed earlier in these reasons, is "to lay down principles for the governance and guidance of courts having the duty of sentencing convicted persons." That is a limiting purpose. It does not extend to the general correction of errors made by sentencing judges. It provides a framework within which to assess the significance of factors relevant to the exercise of the discretion [footnotes omitted].
3. This is a case through which it is useful to clarify the gravity with which sentencing courts should view offences that carry a maximum penalty of life imprisonment, and a significant SNPP. This Court has frequently highlighted the need for stern sentences where children have been sexually assaulted, and s 66A has been considered on numerous occasions: see for example EG v R, at [42] - [43]; R v JJ [2019] NSWCCA 148 at [44] - [45]; R v Toohey [2019] NSWCCA 182 at [64] - [67]. It should be well understood that a sentence of anything less than full-time imprisonment must be exceedingly rare for an offence contrary to s 66A, and could only be available where there are wholly exceptional circumstances.
4. A full-time custodial sentence was warranted in this matter: nothing else could adequately reflect the criminality of the offence, denounce it and, importantly, deter others who might commit such crimes against children.
5. I have set out already the evidence relevant to sentence, including the material filed by the respondent as to his health, and the possible danger to him should he be incarcerated during a pandemic.
6. Having regard to all of the evidence relevant to sentence, including the isolated and transitory nature of the offence, the fact that it was committed for a non-sexual (if unknown) purpose, and giving the respondent the benefit of his long years of good character, a sentence of 3 years imprisonment is appropriate. That sentence also takes into account the fact that the respondent has spent a period of time subject to the CCO imposed upon him at first instance.
7. The respondent's age and respiratory condition, particularly in the present days of a pandemic, would justify a finding of special circumstances pursuant to s 44(2) of the CSP Act, to permit a departure from the ordinary statutory ratio. In the unusual circumstances that prevail in this matter, I would impose a NPP period of 1 year imprisonment, with an additional term of 2 years.
8. Announcing a sentence of 3 years imprisonment serves the primary purpose of a Crown appeal against sentence, that being to lay down principles for the governance and guidance of sentencing courts.
9. The Court retains a residual discretion not to interfere with respect to the sentence, even though the sentence is erroneous. This is a matter in which the discretion should be exercised.
10. I am mindful of the present medical emergency. Although the respondent's evidence was silent on this point, it may be readily accepted that the experience of serving a custodial sentence will be more onerous for him than is the general experience. It is reasonable to conclude that the respondent, a man of advanced age who suffers from a long-term bronchial condition, will experience a level of stress, anxiety, and even fear at the potentially fatal consequences to him were he to be infected with the COVID-19 virus in prison, that would not be the case for a younger, fitter, prisoner.
11. In the unusual circumstances of this case I would not proceed to re-sentence, despite the clear inadequacy of the sentence imposed at first instance.
12. Accordingly, I propose the following order: 1. Crown appeal against inadequacy of sentence dismissed.

Endnote

1. See, for example, M v The Queen (1994) 181 CLR 487; [1994] HCA 63 and SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13; Pell v The Queen [2020] HCA 12. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 22 April 2020