RO v R

Judgment 1HOEBEN CJ at CL: Between 7 and 21 May 2012 the applicant was tried before Armitage DCJ and a jury on an indictment containing eight counts. Count 1: Between 21 August and 7 September 1994 at Wentworth Falls the applicant indecently assaulted KJ, then under the age of 16, contrary to s61M(1) Crimes Act 1900. Count 2: Between 1 January and 31 May 1995 at Wentworth Falls the applicant indecently assaulted KJ, then under the age of 16, contrary to s61M(1) Crimes Act 1900. Count 3: Between 1 January and 31 May 1995 at Wentworth Falls the applicant indecently assaulted KJ, then under the age of 16, contrary to s61M(1) Crimes Act 1900. Count 4: Between 1 June and 30 December 1995 at Medlow Bath, the applicant had sexual intercourse with KJ without consent in circumstances of aggravation, namely that she was then under the age of 16 years, contrary to s61J(1) Crimes Act 1900. Count 5: Between 1 January and 31 December 1996 at Wentworth Falls the applicant had sexual intercourse with KJ without consent in circumstances of aggravation, namely that she was then under the age of 16 years, contrary to s61J(1) Crimes Act 1900. Count 6: Between 1 January and 31 December 1996 at Wentworth Falls the applicant attempted to have sexual intercourse with KJ without consent, in circumstances of aggravation, namely that she was then under the age of 16 years, contrary to s61J(1) Crimes Act 1900. Count 7: Between 1 January and 31 December 1996 at Wentworth Falls the applicant indecently assaulted KJ then under the age of 16 years, contrary to s61M(1) of the Crimes Act 1900. Count 8: Between 1 January and 31 December 1996 at Wentworth Falls the applicant had sexual intercourse with KJ without consent in circumstances of aggravation, namely that she was then under the age of 16 years, contrary to s61J(1) of the Crimes Act 1900. 2On 18 May 2012 the jury returned verdicts of not guilty to counts 2, 3, 5 and 6 and guilty to count 8. On 21 May 2012 the jury returned verdicts of guilty to count 1, and not guilty to count 7. The jury could not reach a verdict on count 4, and the trial judge discharged the jury in relation to that count. The DPP decided not to further prosecute count 4. 3On 3 August 2012 Armitage DCJ sentenced the applicant to imprisonment as follows: Count 1: Imprisonment for a fixed term of 2 years from 21 May 2012 to 20 May 2014. Count 8: Imprisonment for 5 years with a non-parole period of 3 years to commence on 21 May 2013 and to expire 20 May 2016, with a balance of term of 2 years, to expire 20 May 2018. The total effective sentence was imprisonment for 6 years with a non-parole period of 4 years. 4The applicant seeks leave to appeal against both conviction and sentence. His appeal in relation to conviction relies upon one ground. Ground of Appeal 1: The verdicts of the jury are unreasonable and cannot be supported having regard to the evidence. 5Because of the way in which the appeal was argued, it is necessary to set out the factual background to all of the counts, even though the applicant was acquitted of five of them and discharged in respect of count 4. 6The Crown case was that KJ was born in 1981. Her mother is JW, who was married to a man whom KJ regarded as her father. In about November 1993, JW fell pregnant to the applicant. JW left her husband and commenced to live with the applicant. At about the same time, KJ's older sister, LD, who was not living at home, also became pregnant. 7From about the middle of 1994 KJ, JW and the applicant, and later the baby, lived together in a house in Langford Street, Wentworth Falls. KJ turned 13 in June 1994. KJ's bedroom was in a detached garage. The baby girl was born on 18 August 1994. At about the same time, LD gave birth to a son. 8There was an occasion when KJ and her mother went to buy marijuana from a street dealer. He did not have any of that substance, but sold them some acid drops, which were described in the evidence as "microdots". KJ, her mother and the applicant took the acid drops. KJ and her mother went for a walk and experienced the effects of the acid drops. KJ was laughing so much that she wet herself. She went into her bedroom in the garage to get changed and lie down. 9It was the Crown case that the applicant came in and lay on the bed beside KJ. He exposed his penis and then put his hand inside her pants and rubbed her vagina (count 1). JW walked in when he had his penis in his hand and then stormed off. The applicant got off the bed and left the garage. He and JW argued. The next day KJ and her mother argued in the course of which she called KJ a slut. JW told KJ to leave. KJ went to live with her sister, LD, at Medlow Bath. 10On 7 September 1994 KJ made an application to the Department of Social Security (DSS) for the Young Persons' Homeless Allowance. In the application she said she left home on approximately 22 August 1994. The application was approved. 11KJ lived for a short time in a house in Taylors Road in Wentworth Falls with three other young persons. She said that the applicant brought a stereo over and told her that she could keep it if she kept her mouth shut. After a short time, KJ moved to another house. Her mother signed the lease. KJ would contact her mother on occasions, in order to get household items. 12KJ said that on one occasion the applicant brought over some pots and pans. He exposed his penis and put it on the kitchen bench and started to touch KJ's breasts (count 2). He then moved his hands onto the area of her vagina, and rubbed it (count 3). 13In about June 1995 KJ moved into a unit at Haveland Avenue in Blackheath. She said that on an occasion when she was living there, the applicant was driving her to her mother's house in Wentworth Falls when he pulled over to the side of the road at Medlow Bath. He pulled his penis out and asked her to suck it. He pulled her head down onto his penis and put it in her mouth (count 4). 14KJ moved in with her sister LD for a period of time. At the start of 1996 she moved in with her mother and the applicant at Bass Road, Wentworth Falls. KJ said that there was an occasion when she was in the shower and she called out to her mother for a towel. The applicant came into the bathroom with his penis exposed and a towel. He said that she could have the towel if she sucked his penis and then forced her mouth onto his penis (count 5). 15KJ spoke of occasions when the applicant would joke about his penis and expose it in the kitchen. JW would tell him to put it away. 16KJ alleged that on an occasion at Bass Road, the applicant grabbed her and pushed her into her mother's bedroom. He got on top of her and asked her to suck his penis and when she said "no", he hit her in the face with his penis (count 6). 17KJ said that on an occasion at Bass Road, the applicant came to her in the kitchen and put his hands down her pants and rubbed her vagina (count 7). 18On another occasion at Bass Road, KJ was in her bedroom, lying on her bed listening to music. The applicant came in and lay on her bed and exposed his penis. He put his hand down her pants and started rubbing her vagina. He penetrated her vagina digitally with his fingers. She told him to stop and he replied "Gee it takes you a long time to get wet" (count 8). 19After this event, KJ spoke to her mother and told her that the abuse from the applicant was getting worse. Her mother called her a liar and a slut and told her to leave. 20On 2 October 1996 KJ again applied for the Young Persons Living Away From Home Allowance. She told a social worker that she had left her mother's house on 29 September 1996. She said that her mother's boyfriend had made sexual moves and advances towards her. She said that her mother had been angry and had not believed her and that is the reason she left home. 21At various times KJ spoke to her sister, LD, about what the applicant had done to her. KJ made a formal complaint to the police in 2009. The applicant was interviewed by the police and denied all the allegations. 22KJ said that she had been given her first cone of marijuana when she was aged 8, but had not started using it regularly until she was aged 12. She said that as well as using marijuana when she was a teenager, she also used heroin and amphetamines. She started using heroin when she was aged 15 and used it for about 5 years. She said that she had been clean of any drugs since and she was now aged 30. 23In cross-examination she agreed that she had first complained to the police at the Mount Druitt Police Station in February 2009. She agreed that she had made a statement at Redcliff Police Station in Queensland but she was not sure of the date. She agreed that it could have been April 2009. She said that she had not included everything in that statement and felt that there was more to add, but she was emotionally exhausted. She said that after making that statement, she went to the DSS and obtained some documents, following which she made another statement to police at Springwood, but she could not recall the date. She signed a third statement a couple of months later at Windsor. 24KJ agreed that her drug taking had affected her memory as far as dates went, but she remembered everything else. She agreed that she had spoken to caseworkers at the DSS between 1994 and 1996 and thought that her recollection as to what she told the social workers then would be the same as at trial. 25KJ was not certain if JW's baby had been born or not on the night of the acid incident. She thought that it probably had been born because she did not think that her mother took drugs while pregnant. She agreed that the baby was born on 18 August. She agreed that the social worker's notes said that she had left home on approximately 22 August 1994. She said that she had not filled out the form but that she had signed it. As a 13 year old she thought she could have signed it without reading it. The Crown conceded that hospital records showed that her mother came home from hospital with the baby on 22 August 1994. 26KJ agreed that she was under the influence of drugs when count 1 occurred. The Crown conceded that the notes of a conference with a DPP female solicitor and male Crown prosecutor recorded her as saying "Mum and RO walked outside, laying there feeling guilty, tripping out" (T.95). She said that she moved out of home because she was kicked out, but agreed that she did not like the applicant. She agreed that she had told the social worker that she had just broken up with her boyfriend, her dog had been stolen and that she was having problems at school. She agreed that she had not told the social worker on that occasion (7 September 1994) about the applicant's sexual misconduct and her arguing with her mother about it. 27KJ agreed that there were discrepancies between what she had said in her statements and her evidence. In particular that she had not said anything in her Queensland statement about the applicant putting his penis on the bench, that in the Springwood statement she had said that in relation to count 7, he had put his hands on her vagina on the outside of her clothes and she had made no mention of the allegation of the applicant forcing her to have oral sex in the car at Medlow Bath in her Queensland statement. KJ said that various events and documents had jogged her memory so that she was confident that what she said in evidence at trial was more accurate than that which was recorded in some of the statements. 28LD, KJ's older sister, gave evidence. She confirmed that shortly after the applicant moved in, KJ was kicked out of home. LD was not living at home at the time and KJ came to stay with her on more than one occasion over the next 12 months, always for short periods of time. 29LD recalled one occasion when KJ told her that the applicant had been touching her on her private areas. KJ told her that this had taken place at Langford Street in Wentworth Falls. KJ told her that the applicant would give her a lift home to Falls Road and would make her pay, either by masturbation or making her masturbate him. She could not say when this conversation took place in terms of time, as she was only young and trying to deal with a new baby. 30LD said that she had spoken to JW about these allegations and that JW had said that both of them were lying and that they just did not want her to be happy in her new relationship with the applicant. 31In cross-examination LD said that KJ had not told her whether the applicant was touching her inside or outside her pants, just that he was touching her. KJ had told her of the sexual misconduct of the applicant by August/September 1995 and she did not add any further allegations after that. KJ had since talked about them to her, but that was more recently. 32Mr Habegger gave evidence that during the 1990's he ran a service station at Katoomba. The applicant worked there as an adult apprentice. One day he recalled the applicant saying to him "You know you wouldn't believe it KJ asked me to make her a cup of coffee and I said 'yeah I'll make you a cup of coffee but you have to suck my dick' and guess what she did". He estimated that this conversation occurred in about 1994. 33Under cross-examination he said that he had not made any notes about this conversation, but had dated it by going back to when he left the business. He said that he thought about going to the police but he was in the middle of a nasty divorce at the time. He confirmed that his wife had slept with the applicant, but said that he held no animosity towards him at the time of trial, even though he was very angry at the time. 34Anne Kocek was a senior social worker with the DSS. She had available to her records and reports concerning KJ for the years 1995 to 1997. She was the case worker assigned to this matter but had little independent recollection and needed to rely on her notes. She said that she met KJ on 14 November 1995 at the Katoomba office. It was to review the payment she was receiving of Special Benefit and Homeless rate of allowance. Her notes showed that KJ had been granted this allowance in September 1994 and that at the time, she was 13 years old. 35In the interview of 1995 KJ said that she was living in a flat on her own in Blackheath and that she was unable to return home due to tension between her and her mother's de facto. The interview recorded that "she gets on with her mother and had contact with her but she is not allowed and does not want to return home". Ms Kocek confirmed this with a conversation with KJ's mother. JW said that she was not going to provide financial assistance to KJ, but she had helped her set up her own flat. 36On 4 October 1996 another interview was conducted to allow KJ to claim the independent homeless rate. In a statement that was written by Ms Kocek, but in the words of KJ, she said that she was residing at Gardiner Street, Katoomba. She said that she had been living away from home for three years because she did not get on with her mother's boyfriend. She said that she was home for a week or two last month and that she was looking for another place to live and that it was horrible living there. She was not comfortable being around him and they argued a lot so she left on Sunday, 29 September 1996 because she would prefer to be on her own. 37In another document, dated the same date, under a heading "Reasons for Leaving Home" the following was recorded: "According to K she only went home temporarily while she was finding another place to stay. The main reason she left is that she told her mother on a weekend that the mother's boyfriend had made "sexual moves and advances" towards her in the past. Apparently her mother had acted angrily and not believed her. K said she had left for this reason. K said that she'd only just begun disclosing sexual abuse and only did so because a close friend had encouraged her to tell her mother. She had been very hurt by mother's disbelief. K is now staying with a friend's mother, BA, at the above address in Katoomba. K then told me that the Monday night following her leaving home, the mother attempted suicide, was taken to hospital. K said she went up there to visit her mother but she refused to see her. K said that since then her mother will not talk to her." (T.213) 38Ms Kocek said that she discussed accommodation options with KJ and confirmed that she could stay with BA for the time being. She did not feel it appropriate to contact the mother at this stage. Ms Kocek said that the earlier statement did not include allegations about the sexual moves and advances because firstly, the purpose of that report was focused on the eligibility for payment and also a lot of people see these statements and it was not appropriate to include a lot of detail which was not relevant. She confirmed that KJ had mentioned the sexual abuse but she had used her judgment and not included it in the handwritten statement. (T.214-215) 39JW gave evidence that she had four daughters. LD was the oldest and was a few years older than KJ. B was born in 1991 and J, her child to the applicant, was born 18 August 1994. Shortly after KJ was born, she married KJ's father. She first commenced a relationship with the applicant in 1993. She was then living at Cascade Street, Katoomba. After Cascade Street, they moved to Langford Street, Katoomba. This was before J's birth. KJ had a bedroom in the garage of the premises. 40JW said that one night she, KJ and the applicant had taken a trip on a drug. She said she and KJ had gone into Katoomba to get drugs. KJ was 12 or 13 at the time. She said that later she was looking for the applicant as she did not know where he was. She passed KJ and asked where he was. KJ told her that he was in the garage, but that she should not go in there right now. She did go in and the applicant was on KJ's bed, lying on his back with an erection. She said to him "What the fuck do you think you're doing?" She could not remember what he said but it erupted into a big fight and they yelled at each other. She could not remember what was said. She said that she could not remember talking to KJ about it. 41She could not remember what happened the next day but she rented a flat for KJ to live in. She did that because KJ was very independent and it was hard to keep the peace between the three of them. She thought that the flat was in Falls Road at Wentworth Falls. 42After Langford Street they moved to Bass Road. JW said that she ended up taking KJ back, but not straight away. She could not remember KJ visiting them at Langford Street or Bass Road, but she thought that she did because she ended up moving back. She thought that KJ lived with them for about 8 months, between about August 1995 and the middle of 1996. 43KJ left when they had an argument. KJ said to her "I'm going to tell you something that's going to blow your world apart". KJ said: "It is the applicant, he is not as innocent as you think he is" and "If you don't believe me, ask LD". She could not remember the exact confrontation with the applicant, but they had words and he ended up moving out. She could not remember what she said to him. JW said that she suffered from bad memory loss after a heart attack in 2002 and a stroke in 2009. 44In cross-examination she was taken through statements she had made to the police, but could not remember the questions or answers which she gave. 45She was shown a statutory declaration that she had signed that declared that in the period of time that she had known the applicant, he had never displayed any signs of violence or sexually inappropriate behaviour. She agreed that she had signed the document, but said that she had lied when she did so. She said that she had lied in the document because she wanted to keep the lines of communication open between the applicant and J. 46The applicant's ERISP was played to the court. He said that KJ was 13 years old when he took up with her mother and was a "pain in the ass" because she would not go to school and was too busy taking drugs and alcohol. 47In the ERISP the applicant could not recall the acid drop incident. He did not have anything to say about the pots and pan allegation. He did not want to comment about the shower allegation. He denied placing his penis on the table. He denied the allegation in count 8 and the conversation. 48The applicant gave evidence in the proceedings. He said that on the night when they took LSD, KJ was sleeping in the garage. He denied lying on her bed and exposing his penis and rubbing her vagina. He thought that the night of the LSD was probably mid 1995 because KJ occupied the garage. He thought that she moved out a few weeks after that event. 49Under cross-examination he said that he could not remember JW accusing him of having sexual contact with KJ and denied that he had ever done so. He agreed that he occasionally gave KJ a lift in his ute, but denied that he had engaged in any sexual contact. He agreed that KJ had left home when she was aged 13, but said that this was a matter between KJ and her mother. 50He assumed that the night they took acid was in 1995 because it would have been irresponsible to take acid with a three day old baby in the house. He denied everything that KJ said about the acid drop night. He said that he could not remember why he and JW split up, but it was possible that it had occurred because she had accused him of sexual misconduct with KJ. 51It should be noted that there had been a previous trial of these counts, but the jury had been discharged because of an answer which KJ gave in cross-examination. CONVICTION APPEAL The verdicts of the jury are unreasonable and cannot be supported, having regard to the evidence. Applicable law 52In raising this ground of appeal, the applicant was relying upon s6(1) of the Criminal Appeal Act 1912 (NSW). So far as relevant, that section provides: "6(1) The court on any appeal under section 5(1) against conviction shall allow the appeal if it is of the opinion that the verdict of the jury should be set aside on the ground that it is unreasonable, or cannot be supported, having regard to the evidence, or that the judgment of the court of trial should be set aside on the ground of the wrong decision on any question of law, or that on any other ground whatsoever there was a miscarriage of justice, and in any other case shall dismiss the appeal ..." 53The relevant principles were discussed in MFA v R [2002] HCA 53; 213 CLR 606 where Gleeson CJ, Hayne and Callinan JJ said: "23 The case was one in which the jury's assessment of the three principal witnesses, the complainant, MA, and the appellant was vital. The alleged offences arose out of sexual activities between the appellant and boys of a much younger age. The activities were not brought to notice as a result of any complaint by the boys. When first approached by the police, they denied the activities. In court, they sought to explain this by fear and shame. Furthermore, in evaluating the effect of the evidence of MA, the jury were entitled to take account of his age at the time of the alleged events, and the possibility of some confusion on his part. None of this relieved the Court of Criminal Appeal of its responsibility in scrutinising the evidence, and making its own assessment of the reasonableness of the guilty verdicts. However, in making that assessment, the Court would properly have been conscious of the fact that there were aspects of the case that would not be reflected adequately in the written record." 54At [26] those judges said: "The test, as formulated in M, should not be confused with the question whether a trial judge ought to have directed a verdict of not guilty. This is made clear by the opening words of the above passage. The difference between the function of an appellate court in reviewing the totality of the evidence at a trial in order to determine whether a verdict of guilty was unreasonable, and the function of a trial judge in considering whether as a matter of law there is evidence on which an accused could be convicted, was explained in R v R, a decision which was approved by this Court in Doney v The Queen." 55With relevance to the finding of the jury in this case, those judges said: "34 Since the ultimate question concerns the reasonableness of the jury's decision, the significance of verdicts of not guilty on some counts in an indictment must necessarily be considered in the light of the facts and circumstances of the particular case. Furthermore, it must be considered in the context of the system within which juries function, and of their role in that system. A number of features of that context were emphasised in MacKenzie. They include the following. First, as in the present case, where an indictment contains multiple counts, the jury will ordinarily be directed to give separate consideration to each count. This will often be accompanied by a specific instruction that the evidence of a witness may be accepted in whole or in part. Secondly, emphasis will invariably be placed upon the onus of proof borne by the prosecution. In jurisdictions where unanimity is required, such as New South Wales, every juror must be satisfied beyond reasonable doubt of every element in the offence. In the case of sexual offences, of which there may be no objective evidence, some, or all, of the members of a jury may require some supporting evidence before they are satisfied beyond reasonable doubt on the word of a complainant. This may not be unreasonable. It does not necessarily involve a rejection of the complainant's evidence. A juror might consider it more probable than not that a complainant is telling the truth but require something additional before reaching a conclusion beyond reasonable doubt. The criminal trial procedure is designed to reinforce, in jurors, a sense of the seriousness of their task, and of the heavy burden of proof undertaken by the prosecution. A verdict of not guilty does not necessarily imply that a complainant has been disbelieved, or a want of confidence in the complainant. It may simply reflect a cautious approach to the discharge of a heavy responsibility. In addition to want of supporting evidence, other factors that might cause a jury to draw back from reaching a conclusion beyond reasonable doubt in relation to some aspects of a complainant's evidence might be that the complainant has shown some uncertainty as to matters of detail, or has been shown to have a faulty recollection of some matters, or has been shown otherwise to be more reliable about some parts of his or her evidence than about others." 56The remaining members of that court (McHugh, Gummow and Kirby JJ) expressed themselves in similar terms: "56 The majority in M pointed out that "[i]n most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced". In such a case of doubt, it is only where the jury's advantage of seeing and hearing the evidence can explain the difference in conclusion about the accused's guilt that the appellate court may decide that no miscarriage of justice has occurred: "If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence." " (The quotations referred to are from M v R [1994] HCA 63; 181 CLR 487 at 494.) 57Those statements of principle were approved by the majority in SKA v The Queen [2011] HCA 13; 243 CLR 400 (French CJ, Gummow and Kiefel JJ): "11 It is agreed between the parties that the relevant function to be performed by the Court of Criminal Appeal in determining an appeal, such as that of the applicant, is as stated in M v The Queen by Mason CJ, Deane, Dawson and Toohey JJ: "Where, notwithstanding that as a matter of law there is evidence to sustain a verdict, a court of criminal appeal is asked to conclude that the verdict is unsafe or unsatisfactory, the question which the court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty". 12 This test has been restated to reflect the terms of s 6(1) of the Criminal Appeal Act. In MFA v The Queen McHugh, Gummow and Kirby JJ stated that the reference to "unsafe or unsatisfactory" in M is to be taken as "equivalent to the statutory formula referring to the impugned verdict as 'unreasonable' or such as 'cannot be supported, having regard to the evidence'." 13 The starting point in the application of s 6(1) is that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, and the jury has had the benefit of having seen and heard the witnesses. However, the joint judgment in M went on to say: "In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. It is only where a jury's advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred." ... 14 In determining an appeal pursuant to s 6(1) of the Criminal Appeal Act, by applying the test set down in M and restated in MFA, the Court is to make "an independent assessment of the evidence, both as to its sufficiency and its quality". In M, Mason CJ, Deane, Dawson and Toohey JJ stated: "In reaching such a conclusion, the court does not consider as a question of law whether there is evidence to support the verdict. Questions of law are separately dealt with by s 6(1). The question is one of fact which the court must decide by making its own independent assessment of the evidence and determining whether, notwithstanding that there is evidence upon which a jury might convict, 'none the less it would be dangerous in all the circumstances to allow the verdict of guilty to stand'."" 58In relation to count 1 (the acid drop incident), the applicant submitted that KJ's evidence was unreliable. Not only was she giving evidence of an incident which took place nearly 18 years earlier, but as she conceded, this was her first "acid trip", it affected her pretty quickly and she was feeling giddy and strange. She was so severely affected that she did not see or hear the applicant come in as she was "out of [her] mind on acid". KJ said that it "happened all so quickly" before JW walked in. 59The applicant submitted that count 1 was not supported by the evidence of JW. Her evidence directly contradicted that of KJ in that she said that she saw KJ outside the garage. JW expressly denied witnessing any sexual impropriety by the applicant. There was also the content of the statutory declaration (which JW subsequently asserted was a lie) to the effect that the applicant had never displayed any sexually inappropriate behaviour. 60The applicant submitted that there was a real doubt whether any offence in relation to the acid drop night took place on the dates specified in the indictment (21 August - 7 September 1994). He submitted that KJ was almost incapable of giving unassisted evidence as to dates and periods of time. The DSS records had the acid drop incident occurring on 21 August and KJ leaving home on 22 August. This was inconsistent with JW coming home with the baby on 22 August. KJ could not remember the baby when she was a few days old. The applicant submitted that the evidence of LD did not support the evidence of KJ as to dates. 61The applicant submitted that taking those three matters in combination, there had to be a real doubt that he was guilty of count 1. The applicant submitted that the jury's advantage in seeing and hearing KJ could not resolve the doubt which must exist in relation to count 1. 62The applicant made similar submissions in relation to count 8 (listening to music in bed). The applicant submitted that there were inconsistencies in the statements which KJ made concerning this incident and that the statements described an escalating level of seriousness. In the Queensland statement, KJ did not say that the applicant penetrated her vagina. She said that the applicant asked her for a "hand job" which she refused. In the Springwood statement, KJ did not mention the incident. It was not until her conference with the DPP solicitor and Crown Prosecutor in May 2011 that KJ for the first time, mentioned penetration. 63The applicant submitted that KJ's evidence of living at Bass Road, and thus providing the opportunity for the incident in count 8 to have taken place, was not satisfactory. KJ's evidence was that she was in and out of Bass Road, but she could not provide any details. JW was not able to provide any detail of when KJ lived at Bass Road. The evidence of KJ was that the incident in count 8 and the incidents which made up counts 5 - 7, took place over six months on and off and not within one to two weeks. KJ, however, was unable to say that she lived at Bass Road before about 15 September 1996 and said that she told JW about all the incidents on about 29 September 1996. The basis for this evidence was the DSS documents which showed that KJ provided information that she "was at home for a week or two last month and she was looking for another place to live ... [She] left on Sunday, 29 September 1996". DSS records showed that KJ was receiving the living away from home allowance until September 1996 when she started a job. 64The applicant submitted that these matters must cause the Court to have a doubt, which the jury should also have had, concerning his guilt. 65The applicant submitted that when one compared the jury's verdicts of guilty to counts 1 and 8, with its verdicts of not guilty to counts 2, 3, 5, 6 and 7 and no verdict to count 4, the result was unreasonable and anomalous. 66The applicant relied on other inconsistencies in KJ's evidence. In her evidence in relation to counts 2 and 3 (the pots and pans incident), KJ said that the applicant placed his penis on the bench, touched her breasts, put his hands inside her underpants and started to rub her vagina. In the Queensland statement, KJ did not mention the bench, nor that the applicant had touched her breasts or put his hands inside her underpants. In the Springwood statement, she did not mention that the applicant put his hands inside her underpants. In both statements, KJ said that the applicant's hands were on the outside of her clothes. Similarly, in relation to count 8, KJ had previously given a different less serious account of the incident. The applicant submitted that in those circumstances, it was unreasonable for the jury to find him not guilty of counts 2 and 3, but guilty of count 8. 67The applicant made a similar submission in relation to count 4 (the Medlow Bath driving incident). At trial, KJ gave evidence that the applicant told her to suck his penis or walk, and physically forced her to perform oral sex on him. KJ did not mention this incident in the Queensland statement. There was some evidence suggesting that during the time when this incident was said to have occurred, JW and the children were living at Kingscliff. Accordingly, KJ had no occasion to come in contact with the applicant in the Blue Mountains while JW was living in Kingscliff. There would have been no need to drive through Medlow Bath. 68The applicant submitted that the offences and lack of consent in relation to counts 5 and 6 were more clearly articulated than for count 8. In relation to count 8, the evidence of penetration had been added recently, whereas that had not occurred in relation to counts 5 and 6. Nevertheless, the jury found him not guilty of counts 5 and 6, but guilty of count 8. 69The applicant submitted that the evidence of LD was unreliable. There was no evidence, except from her, as to the applicant making KJ "pay either by masturbation or making her masturbate him". Although LD said that she was concerned by the allegations of KJ when she heard them, she did not report them to the police, remained friends with the applicant and even invited him to her wedding in 2007. Consideration 70The counts on the indictment related to distinct incidents. The only occasion when one incident gave rise to more than one count was the "pots and pans" incident, which gave rise to counts 2 and 3 upon which the applicant was acquitted. Because count 1 (acid trip) and count 8 (listening to music) each arose out of a distinct incident, the different verdicts do not give rise to any immediate concern that one count in an incident had been accepted, but another count arising from the same incident had not been. 71There was no issue that KJ had a poor recollection for dates. In relation to counts 1 and 8, however, the time periods set out on the indictment were established by reference to evidence from sources other than the recollection of KJ. Accordingly, her imprecision as to dates is not decisive. 72The dates for count 1 were set by reference to the birth of JW's baby, and the date on which she brought the baby home, namely 22 August 1994, as the start date. The end date was set by reference to the date of the application by KJ for the Living Away From Home allowance, i.e. 7 September 1994. The fact of an incident involving the acid trip was confirmed by the applicant, although he placed it much later in time. He was not, however, able to point to any external reference point to confirm that date, but relied upon an assumption that JW would not take an acid trip shortly after having given birth. Some doubt must arise in relation to that assumption, given that JW was a person who had introduced KJ at the age of 8 to cannabis and took acid in her company when she was aged 13. 73Perhaps the most compelling confirmation of the dates for count 1 is the coincidence in time of KJ's description of the offence, her mother's reaction to it and her ejectment from the family home. The departure of a 13 year old girl from the family home without support is a sufficiently unusual event to allow an inference that some special incident had occurred to bring that departure about. 74The offence in count 8 is said to have happened when KJ was living at Bass Road in the period between 1 January to 31 December 1996. KJ, JW and the applicant all agree that in 1996 they were living at a house in Bass Road. There was evidence from the DSS records that KJ made an application and complaint about the applicant's sexual misconduct in October of that year. Although it was not clear how long KJ had lived there, the evidence did establish that she was there for a period, at least until 4 October 1996. The time period was again set by reference to evidence, other than the recollection of KJ. Accordingly, it was well open to the jury in relation to both count 1 and count 8, to find that there was an opportunity for the applicant to commit the offences between the specified dates. 75It is not without significance that counts 1 and 8 are the only counts where there was independent evidence as to dates and events, which assisted in giving the offences a temporal context. Such evidence was lacking in relation to the other counts. 76An important part of the applicant's challenge to count 1 was the state of sobriety of KJ. The fact that she was under the influence of LSD at the time does not mean that her evidence should be rejected. Her description of the offence is at T.12 - 15. She described the effect on her as "a buzzy feeling". After she had returned to her room and got changed, she "laid down because I was feeling dizzy and strange". KJ was able to provide considerable detail as to what happened. When asked under cross-examination whether she was hallucinating, she said that she was not: "It was more like a buzzing, dizzy sensation" (T.93.42, T.94.40). 77The question of the reliability of the evidence of KJ, in relation to count 1, was fundamentally a jury question. This is one of those areas where the jury's assessment of KJ was vital and where the jury was in a better position than an appellate court. Neither in chief nor in cross-examination did KJ demonstrate that her memory of count 1 was deficient. There was no evidence that KJ had given inconsistent versions of count 1. There was nothing in her evidence which was incapable of belief or otherwise indicative of a drug induced hallucination. 78Whatever reservations the jury may have had as to the evidence of KJ concerning count 1, that did not apply with respect to count 8. There was no evidence that she was under the influence of any drug at the time. There was no deficit in detail and nothing to indicate that her memory was deficient in any way. While KJ had given different versions of the offence in count 8, there was some confirmation of such an offence by reason of the complaint made to Ms Kocek in October 2006. The jury was well placed to assess the inconsistencies and those inconsistencies did not compel the conclusion that a verdict of guilty on that count was unreasonable or such as could not be supported by the evidence 79There was some support for KJ's evidence concerning count 1 from JW. The applicant was found by JW to be lying on KJ's bed with an erection. This was after KJ had warned her not to go into the room. JW's reaction is also significant: "What the fuck do you think you're doing?". While the detail does not match the evidence of KJ, the overall circumstances support the proposition that something of a sexual nature took place between the applicant and KJ at the time which upset JW. 80The strongest support for KJ's evidence concerning counts 1 and 8 comes from Ms Kocek and the DSS notes. They confirm that she had been granted a Living Away From Home allowance in September 1994 when she was 13. In November 1995 she told Ms Kocek that she was unable to return home due to tension between her and her mother's de facto, and that she was not allowed and did not want to return home. In the October 1996 interview, she is recorded as saying that she was home for a week or two in the last month, but it was horrible living there. KJ was not comfortable being around him and they argued a lot so she left on Sunday, 29 September 1996 because she would prefer to be on her own (T.212). The other document headed "Reasons for Leaving Home" recorded her first complaint about the applicant making "sexual moves and advances" towards her. It also, consistent with her testimony, recorded her mother's refusal to believe her complaint about the applicant. 81The applicant's challenge to the offence in count 8 was based on inconsistencies between statements which KJ had made to the police and her evidence at trial. The applicant submitted that KJ had embellished her descriptions of what had occurred over time so as to make the offence more serious. 82When the evidence is examined, the discrepancy is not as marked as has been submitted. There is no argument that KJ had mentioned the incident in a statement she made in Queensland (T.125) but had not mentioned it again in a later statement she made at Springwood. When this was put to her KJ said that the Springwood statement was only made to clarify dates and times. "Q. Have you been attempting to make the allegation more serious by adding details such as that he penetrated your vagina? A. I've been attempting to get the truth out and to move on. Q. And to not worry about less serious allegations like him asking you to give him a hand job? A. I don't understand. Q. I'm saying to you have you substituted a more serious allegation that he penetrated your vagina for a less serious one that he asked you to give him a hand job? A. No, I don't know, I don't have a legal background, I don't know what the difference is between the two. I've spoken the truth. It's taken a long time to be able to get it out. Q. Ms J would you agree that penetrating your vagina with his fingers is more significant than asking you to give him a hand job? A. I think they're both just absolutely disgusting." (T.127.11) 83The Crown clarified what in fact had been said by KJ in her Windsor statement concerning the event: "Q. In your Windsor statement do you say this, "In my Queensland statement at paragraph 84 I refer to an incident with RO in my bedroom at Bass Road, Wentworth Falls. When I say that RO was rubbing my vagina for a long time, he actually penetrated my vagina digitally with his fingers, while he masturbated his penis with his other hand. My vagina was fairly dry and his actions were causing me pain as he penetrated me with his fingers." (T.185.26) 84Accordingly the suggested material inconsistency and attempt to exaggerate was not as marked or significant as was put in the applicant's submission. By way of contrast, there were material inconsistencies in relation to the allegations with respect to the subject matter of counts 2, 3 and count 4. What the jury seems to have done is to look for corroborating detail in relation to the counts before them and where such detail was lacking, they were not prepared to find guilt. Their approach appears to be similar to that described and implicitly approved by Gleeson CJ, Hayne and Callinan JJ in MFA at [34] (see [55] hereof). 85In relation to counts 1 and 8, there was a coherent body of evidence upon which it was open to the jury to convict. The evidentiary problems that emerged in relation to other counts did not exist in relation to counts 1 and 8. Most particularly, there was the confirmatory evidence of the DSS notes as to dates and in relation to count 8, as to actual complaint. There was also the confirmatory detail relating to the birth of J, that an acid drop event did take place and that KJ did leave home at the age of 13 in August 1994. The findings of guilt in relation to counts 1 and 8 are readily explained because there was more and better evidence in relation to them than in relation to the other counts. 86Not only was it well open to the jury to be satisfied beyond reasonable doubt that the applicant had committed the offences in counts 1 and 8, but having examined the evidence for myself, I am also satisfied to that standard that the applicant was correctly found to be guilty of those offences. Ground of Appeal 1 should be dismissed. SENTENCE APPEAL Proceedings before sentencing judge 87In the sentencing proceedings, the following evidence was placed before his Honour. A custodial history of the offender, a victim impact statement from KJ dated 20 June 2012, a pre-sentence report of Gavin Moore, dated 18 June 2008, a report of Dr Andrew Robertson, dated 26 April 2008, two reports of a psychologist, Ms Young, dated 17 June 2008 and 1 August 2012. The defence material on sentence included affidavits from Ms Willoughby and Ms Hicks. The applicant's brother gave evidence. 88His Honour set out the history of the offending and then said: "It is sufficient to say at this point that of course I shall sentence in accordance with the facts I have found on sentence and not on any other facts, whether contained in histories given by the offender to various people or in the victim impact statement. Having said that, the victim impact statement depicts a young woman who, though damaged in a number of respects as a result of her life generally and in particular, as a result of what I can only describe as inconsiderate and irresponsible treatment by her mother, who should have known better, has suffered greatly as a result of the offender's offending against her. It has contributed, I am satisfied, along with many other events, to her current distress which, according to her statement, has resulted in a diagnosis of post traumatic stress disorder. I do not have any psychiatric evidence on that subject, so I cannot verify that diagnosis, although I accept that the victim has been told by doctors that that is her diagnosis, and I cannot make any finding, unguided by expert evidence, as to the exact causation of her post traumatic stress disorder, although it defies common sense to suppose that it has not been contributed to in some way by the offender's offending. The degree to which that has occurred is something I cannot determine without expert evidence. ... (ROS 6) It may be that she would have been kicked out by her mother anyway for some other reason, but this was in fact the operative reason why she was kicked out by the mother on the occurrence of the first and second offences after she complained of them. That contributed significantly to the ongoing damage of which she now complains in her victim impact statement. I think it is possible to say that the victim has suffered significant psychological damage as a result of the offences, despite counsel's submission to the contrary." (ROS 17) 89Without analysing in detail his Honour's reasons, his Honour made the following findings: (i) The sentences were to be in accordance with the sentencing regime existing in 1994 and 1996. (ii) The sentences were to be backdated to 21 May 2012, the day the applicant went into custody. (iii) The applicant had one prior offence of offensive conduct in 1989 and so he was to be regarded as a person of good character. (iv) Since these offences, the applicant had committed two offences of indecent assault on a person under 16. (v) The maximum penalties are a clear indication of the great seriousness with which the offending is to be regarded. In relation to the more recent offences, reports show that the applicant indicated that he did not need treatment as he did not see that he had a problem. (vi) The applicant was the youngest of three siblings. He was adopted at 8 months and had a supportive and stable upbringing. Both his adoptive parents were dead. He had occasional contact with his biological mother. After leaving school, he completed an apprenticeship in automotive light vehicles and has since qualified in automotive radiator repair and was a liquefied petroleum gas mechanic. He had been employed for five years with an auto repair business in Lithgow at the time of his arrest. He was regarded as a valuable employee and there was work for him when released from custody. (vii) In 1997 after the relationship with JW had broken up, he entered another significant relationship with a woman who had three daughters and a son. He committed the two recent offences on his stepdaughters during this time. (viii) Since separating from this partner in 2008, he has lived with a friend and has not posed any problems. (ix) He entered a new relationship in 2011. There were young children present in this relationship. The report of the psychologist, Ms Young, of 1 August 2012 concluded that he constituted a low risk of re-offending in relation to other male offenders but in terms of "dynamic" risk, there was a moderate risk of him re-offending. (x) The pre-sentence reports and medical reports indicated that he was in denial and that during previous supervision, his response was superficial. (xi) The first offence (count 1) was in the middle of the range of seriousness for offences of this kind. The second offence (count 8) was in the middle of the range of seriousness but "I prefer not to set either offence in a precise position on a range because of the danger of adopting a two step process in sentencing which was stigmatised in Muldrock v R (ROS 15, 19). (xii) The vulnerability of the victim was not an aggravating factor under s21A of the Crimes (Sentencing Procedure) Act 1999 (ROS 15) but the Crown submission that the victim was entirely vulnerable is correct. The defence submission that the victim was not vulnerable in relation to the second offence because she had a boyfriend, lived away from home, had a job and interacted with the DSS was not accepted. (ROS 16) (xiii) The harm suffered by the victim was substantial and an aggravating feature under s21A(2)(g) of the Act (ROS 20). (xiv) The fact that the applicant was not arrested until 2009 because the victim kept the offences hidden was not a mitigating factor (ROS 18). (xv) Special circumstances were found because this would be the first time in custody and he needed a longer than usual period of supervision on parole. (ROS 18) Ground 2: Armitage DCJ erred in finding that the harm suffered by KJ was substantial and an aggravating factor pursuant to s21A(2)(g) Crimes (Sentencing Procedure) Act 1999, "the Act". 90The applicant submitted that the sentencing judge erred in concluding that KJ had "suffered significant psychological damage as a result of the offences". There was simply no evidence to distinguish the effect of these offences on her from the other major adverse influences in her life, including her disturbed family life and drug abuse. It was not open to his Honour to accept KJ's assertions as to the effect of the offences on her since this would have involved some kind of medical assessment in circumstances where there was no medical evidence to that effect. 91The Crown acknowledged that his Honour had erred. The Crown accepted that there was no evidence to establish, in accordance with s21A(2)(g) of the Act that "substantial" harm had been caused to KJ by the offences. The Crown accepted that the cause of KJ's psychological damage was multifactorial and that in the absence of medical evidence which separated out the effects of these offences, the finding which his Honour made was not open to him. 92The Crown submitted, however, that it was open to his Honour to have found that these offences did cause some psychological damage to KJ. It would defy common sense not to make such a finding. What his Honour could not do on the statement of the evidence before him was make a qualitative or quantitative assessment of the extent of that harm. I agree with that submission by the Crown. 93This ground of appeal was made out. Ground 3: Armitage DCJ erred in assessing the offence of aggravated sexual assault as around the middle range of objective seriousness for offences of this kind. 94The applicant submitted that in relation to count 8, the sentencing judge had erred in placing that offence at around the middle range of objective seriousness for offences of that kind. The applicant based this submission on the following considerations. At age 15 KJ was towards the top of the range for the offence, its duration was no more specific than "a long time", the penetration was digital, there was no evidence as to the extent of the penetration and there was no violent forceful or threatening conduct. 95As a matter of principle, assessments of objective seriousness are matters within the particular purview of the sentencing judge. This Court has been slow to set aside such assessments: Mulato v R [2006] NSWCCA 282 at [37], [47]; Couloumbis v R [2012] NSWCCA 264 at [24]. 96The offence in count 8 was contrary to s61J(1) of the Crimes Act 1900. The elements of that offence are sexual intercourse without consent. The victim's age, being under 16, is an aggravating circumstance but it is not an element of the offence. The age of the victim is important but the gist of the offence is the absence of consent. 97While the description "a long time" is imprecise, it is clear that this was not a momentary or opportunistic action on the part of the applicant. The remark attributed to him suggests some considerable length of time. 98The offence in count 8 also needs to be looked at in the light of the offence in count 1. This offence was not isolated and reflected an escalation of the first offence. KJ was the applicant's stepdaughter, was vulnerable and he took advantage of her on her own bed where she was entitled to feel safe. 99The nature of the sexual intercourse is not of particular significance. This Court has consistently rejected an informal rating in levels of seriousness of the various forms of sexual intercourse. Each offence depends upon its own particular facts. Digital penetration, such as occurred here, can be particularly confronting and destructive in its effect. It was well open to his Honour to assess the offence in count 8 as being in the middle range of seriousness. This ground has not been made out. Ground 4: The sentence for the offence of aggravated sexual assault is manifestly excessive. 100The applicant submitted that by reference to sentences imposed in other cases for offences contrary to s61J in the 1990's, the sentence imposed for count 8 in this case was manifestly excessive. The Court was taken to eight cases decided during the period 1994 - 2005. The cases commenced with R v Gebrail (NSWCCA 18 November 1994) where the complainant was aged 17 and the aggravating element was malicious infliction of actual bodily harm. The offender had no criminal record. On a Crown appeal, the offender was re-sentenced to imprisonment for 3 years with a non-parole period of 2 years and 3 months. The most recent case in the series was R v RTGS [2005] NSWCCA 293 where the offender was found guilty. The offender was found to have put his hand down the underwear of his 11 year old step niece and touched the inside of her vagina with his fingers for about 15 minutes. He received a sentence of imprisonment for 3 years with a non-parole period of 18 months. 101The applicant submitted that his sentence of 5 years with a non-parole period of 3 years was the most severe sentence by comparison with those cases. The longest head sentence in the series was 3 years and 3 months and the longest non-parole period was 2 years and 3 months. The applicant pointed out that in both those cases, the offenders had been found guilty after a trial and in one of the cases the offender had a history of sex offences. The applicant submitted that although not much was known of the subjective circumstances of the offenders in those cases, even a very favourable subjective case could not be enough to explain the significant severity in the sentence imposed on him. 102It is trite law that for an applicant to be successful in making out a ground of appeal based on manifest excess, he or she must demonstrate that the sentence was "unreasonable or plainly unjust": R v Hayek [2010] NSWCCA 139 at [53]; Markarian v The Queen [2005] HCA 25; 228 CLR 357. It is not enough to show that the sentencing judge could have taken a different course or that appellate judges would have done so: House v The King [1936] HCA 40; 55 CLR 499 at 504 - 505. 103The relevant question on appeal is whether the sentence was within a proper range. It is not a question of whether other sentences can be said to be more or less lenient by undertaking a detailed analysis of other cases as there is often a wide range of differences in objective and subjective circumstances to which the sentencing judge may have attached particular weight; R v Morgan (1993) 70 A Crim R 368. 104Appellate intervention on a manifest excess ground is not justified simply because the result arrived at is markedly different from other sentences that have been imposed in other cases. Intervention is warranted only where the difference is such that, in all the circumstances, the appellate court concludes that there must have been some misapplication of principle, even though it is not apparent from the sentencing judge's statement of reasons, or where the sentence is so far outside the range available that there must have been error: Hili v The Queen; Jones v The Queen [2010] HCA 45; 242 CLR 520 at [59] citing Dinsdale v The Queen [2000] HCA 54; 202 CLR 321. 105In Hili the plurality, French CJ, Gummow, Hayne, Crennan, Keifel and Bell JJ, said: "48 Consistency is not demonstrated by, and does not require, numerical equivalence. Presentation of the sentences that have been passed on federal offenders in numerical tables, bar charts or graphs is not useful to a sentencing judge. It is not useful because referring only to the lengths of sentences passed says nothing about why sentences were fixed as they were. Presentation in any of these forms suggests, wrongly, that the task of a sentencing judge is to interpolate the result of the instant case on a graph that depicts the available outcomes. But not only is the number of federal offenders sentenced each year very small, the offences for which they are sentenced, the circumstances attending their offending, and their personal circumstances are so varied that it is not possible to make any useful statistical analysis or graphical depiction of the results. ... 53 ... Care must be taken, however, in using what has been done in other cases. 54 In Director of Public Prosecutions (Cth) v De La Rosa, Simpson J accurately identified the proper use of information about sentences that have been passed in other cases. As her Honour pointed out, a history of sentencing can establish a range of sentences that have in fact been imposed. That history does not establish that the range is the correct range, or that the upper or lower limits to the range are the correct upper and lower limits. As her Honour said: "Sentencing patterns are, of course, of considerable significance in that they result from the application of the accumulated experience and wisdom of first instance judges and of appellate courts." But the range of sentences that have been imposed in the past does not fix "the boundaries within which future judges must, or even ought, to sentence". Past sentences "are no more than historical statements of what has happened in the past. They can, and should, provide guidance to sentencing judges, and to appellate courts, and stand as a yardstick against which to examine a proposed sentence". When considering past sentences, "it is only by examination of the whole of the circumstances that have given rise to the sentence that 'unifying principles' may be discerned"." 106While the cases relied upon by the applicant are generally comparable in the sense that the same section of the Crimes Act was relied upon, the circumstances surrounding each episode of offending are all different. Gebrail was a Crown appeal where the offender had no record for similar offending and a finding was made that the offender was unlikely to offend again. The sentence passed of 3 years and 3 months with a minimum term of 2 years and 3 months was said to be at the bottom of the range because of the restraint to be observed by an appellate court when dealing with a Crown appeal. 107Two of the other cases referred to were also Crown appeals in which the Court noted that a heavier sentence should have been imposed but declined to intervene, again because of the principle of judicial restraint when dealing with a Crown appeal. In three of the cases, the appeal related to conviction and no consideration was given to the sentence imposed. RTGS was one of those cases where an appeal against conviction was dismissed but there was no appeal against the sentence of 3 years with a non-parole period of 18 months. 108While it is clear by a simple reference to the sentences imposed in those cases that the sentence imposed in this case was heavy, it needs to be kept in mind that in this case the applicant did have a history of previous offending (the count 1 offence) and the maximum penalty for the offence was 20 years. In the circumstances of this case, I am not persuaded that by reference to sentences imposed in the 1990's the sentence for count 8 imposed by his Honour involved a misapplication of principle, or was so far outside the range available that there must have been an error. On the contrary, I am of the opinion that the sentence imposed was within range and clearly open at the sentencing judge's discretion. This ground of appeal has not been made out. Ground 5: Armitage DCJ erred in his partial accumulation of the two sentences. 109The applicant submitted that a greater level of concurrency was required in the structure of the sentences. Concurrency of 1 year when the offences occurred more than 15 years ago and when there was a considerable amount of similarity in the conduct constituting the offences, was insufficient. 110Sentencing judges have a wide discretion when fixing sentences and determining questions of concurrency and cumulation. The discretion is subject to the correct application of the principle of totality. In R v Hammoud [2000] NSWCCA 540; 118 A Crim R 66 Simpson J (with whom Mason P agreed) said at [67]: "7 ... Whether or not to accumulate sentences imposed in relation to multiple offences is, in the end, an exercise of discretion to be made in accordance with established principle. Features common to two or more offences are all matters relevant to be taken into account (pointing towards concurrence) as are features indicating the disparate nature of the offences (pointing the other way). There will be many cases in which sentencing judges might take differing views but neither view could be said to be wrong." 111It needs to be kept in mind that the offences arose from separate incidents and involved different offending. The two offences occurred some two years apart. In Cahyadi v R [2007] NSWCCA 1 at [27] Howie J said: "27 In any event there is no general rule that determines whether sentences ought to be imposed concurrently or consecutively. The issue is determined by the application of the principle of totality of criminality: can the sentence for one offence comprehend and reflect the criminality for the other offence? If it can, the sentences ought to be concurrent otherwise there is a risk that the combined sentences will exceed that which is warranted to reflect the total criminality of the two offences. If not, the sentences should be at least partly cumulative otherwise there is a risk that the total sentence will fail to reflect the total criminality of the two offences. This is so regardless of whether the two offences represent two discrete acts of criminality or can be regarded as part of a single episode of criminality. Of course it is more likely that, where the offences are discrete and independent criminal acts, the sentence for one offence cannot comprehend the criminality of the other. Similarly, where they are part of a single episode of criminality with common factors, it is more likely that the sentence for one of the offences will reflect the criminality of both." 112No error has been demonstrated in the structure of the sentences imposed by his Honour. This ground of appeal has not been made out. Conclusion 113Error has been made out in respect of Ground of Appeal 2. The nature of the error is one of degree. Whereas it was open to his Honour to find that KJ had been damaged psychologically by the offending, it was not open to his Honour to make a quantitative or qualitative finding in that regard, i.e. that the damage was either significant or substantial. In that regard, it is not clear to what extent, if at all, that erroneous finding on the part of the sentencing judge affected the sentences which he imposed. 114If it did contribute to the length and structure of the sentences, I would not interfere. This is because I am not satisfied that a lesser sentence is warranted in law (s6(3) Criminal Appeal Act 1912). The offences carry maximum penalties of 7 and 20 years imprisonment respectively. As discussed above, each offence cannot be regarded as being of low objective seriousness. The prospects of rehabilitation are not particularly good, having regard to the similar offences committed by the applicant since these offences and the somewhat equivocal assessment by Ms Young. 115The orders which I propose are that leave to appeal with respect to the conviction and sentence appeals be granted but that the appeals be dismissed. 116ROTHMAN J: I have had the advantage of reading, in draft, the reasons for judgment of Hoeben CJ at CL. I agree with the orders proposed by his Honour, and with the reasons therefor. 117As explained in the reasons for judgment of Hoeben CJ at CL, the applicant for leave to appeal was charged with eight counts in each of which the victim was alleged to be KJ. On two of those counts, the jury returned a verdict of guilty, being counts 1 and 8. The jury returned verdicts of not guilty in relation to counts 2, 3, 5 and 6 initially, and a later verdict of not guilty in relation to count 7. The jury could not reach a verdict on count 4, and the DPP has indicated, the trial judge having discharged the jury, that it will not further prosecute that count. 118I have read all of the evidence in the trial with particular attention to the evidence of the applicant, the victim and the victim's mother and sister. 119In my view, the complainant/victim is unreliable on dates, but otherwise a compelling witness. She concedes her unreliability on dates, particularly in relation to the microdot incident, because of the passage of time and the effect of drug use. 120Nevertheless, her evidence is compelling. I agree with Hoeben CJ at CL that the distinction between Counts 1 and 8, on the one hand, and the remainder of counts, on the other hand, is that the timing of counts 1 and 8 is more definite and is corroborated either by other witnesses or by the timing of independent facts to which the timing of the incident related. 121Each of the counts had a defined time during which it was said the conduct occurred. Each of the counts upon which the jury did not find the applicant guilty required the jury to find that the conduct about which complaint was made occurred during a specified time. As earlier stated, the victim/complainant was unreliable as to time. 122Like Hoeben CJ at CL, I do not have a reasonable doubt as to the verdict on counts 1 and 8. As a consequence, it was open to the jury to be satisfied beyond reasonable doubt that the applicant was guilty of the charges in counts 1 and 8: SKA v R; M v R; MFA v R. 123In Singh v R [2011] NSWCCA 100, I said (Latham and Price JJ agreeing), without the benefit of the judgment of the High Court in SKA v R, citing M v R: "[10] The focus must be on the unreasonableness of the verdict, and the term 'unsafe and unsatisfactory', although sometimes still used, ought not be. Further, whether the verdict was 'open to the jury' does not itself, answer the question. The focus of the examination is whether the jury ought to have experienced a reasonable doubt, which is answered by whether the appellate court has a reasonable doubt that cannot be answered by paying regard to the jury's advantage in seeing and hearing the evidence. See also The Queen v Nguyen [2010] HCA 38; (2010) 85 ALJR 8. [11] Concentration on the expression as to whether it was open to the jury to be satisfied beyond reasonable doubt may lead to some confusion. The focus of the enquiry is not whether there is evidence upon which a jury could have convicted (i.e. whether there was evidence of each element of the offence), but whether it was open to be satisfied beyond reasonable doubt (i.e. whether, on all of the evidence, it was open to be satisfied that there was no reasonable hypothesis consistent with innocence). [12] In examining the issues, it is the evidence as a whole that must be considered; not each part of the evidence in a piecemeal fashion: R v Rasic [2009] NSWCCA 202." 124On the evidence as a whole, the charges in counts 1 and 8 have been proved beyond reasonable doubt and the appeal against conviction must be dismissed. 125I agree with the reasons for judgment of Hoeben CJ at CL. I also agree with his Honour's reasons on the sentence appeal. 126McCALLUM J: I agree with Hoeben CJ at CL, for the reasons his Honour has stated. I am satisfied that it was well open to the jury to be satisfied beyond reasonable doubt that the accused was guilty of counts 1 and 8. In reaching that conclusion, I have undertaken my own assessment of the evidence. The jury saw a DVD of the complainant's evidence-in-chief (given at an earlier trial which miscarried). She gave some further evidence in chief, and was cross-examined, in the presence of the jury in the trial now appealed from. My own impression from reading her evidence is that she was an intelligent and compelling witness. She was aged 30 at the time she gave her evidence. She was frank about shortcomings in her account including the impact of her former drug use on her memory, differences between statements made at different times and the fact that she was "very sketchy with dates". She coped well with a skilful and persistent cross-examination by Ms Avenell. Whilst it is difficult to assess on paper the appellant's evidence appears, by contrast, to have been unimpressive. My assessment of the complainant's evidence and the other evidence in the trial has not left me in any doubt as to the appellant's guilt. I do not think that the jury's verdicts on counts 1 and 8 were unreasonable or that those verdicts cannot be supported having regard to the evidence. 127As to ground 2 in the sentence appeal, it must be acknowledged that it was not open to the judge to make a quantitative assessment on a medical issue without medical evidence. In my view, however, it was open on the evidence to find that the two offences of which the appellant was found guilty on their own must have caused substantial emotional harm to the complainant. Accordingly, I doubt whether the error is of any significance. 128I agree with the orders proposed by Hoeben CJ at CL.