Robbins (a Pseudonym) v The Queen [2017] VSCA 288

CRIMINAL LAW - Appeal - Conviction - Evidence - Jury directions - Delay in complaint - Whether trial judge erred in refusing application for forensic disadvantage direction - Loss of chance to obtain forensic evidence - Loss of chance to explore circumstances of offending - Whether 'significant forensic disadvantage' - Leave to appeal granted - Appeal dismissed - Longman v The Queen [1989] HCA 60; (1989) 168 CLR 79; PT v The Queen [2011] VSCA 43; Mulligan (a Pseudonym) v The Queen [2017] VSCA 94 discussed - Greensill v The Queen [2012] VSCA 306; (2012) 37 VR 257; Jurj v The Queen [2016] VSCA 57; Pate (a Pseudonym) v The Queen (2015) 250 A Crim R 425 distinguished - Jury Directions Act 2015 (Vic) s 39 - Criminal Procedure Act 2009 (Vic) s 276(1)(b).

CRIMINAL LAW - Appeal - Sentence - Sexual penetration of child under 16 (six counts) - Attempted sexual penetration of child under 16 (two counts) - Total effective sentence nine years' imprisonment - Non-parole period of six years - Whether manifestly excessive -Exceptional circumstances found - Sentences not manifestly excessive - Leave to appeal refused.

CRIMINAL LAW - Appeal - Sentence - Sexual penetration of child under 16 (six counts) - Attempted sexual penetration of child under 16 (two counts) - Total effective sentence nine years' imprisonment - Non-parole period of six years - Whether trial judge erred in approach to sentencing for multiple offences - Leave to appeal granted - Appeal dismissed.

1 In 2016 the applicant was tried in the County Court on 12 charges of taking part in an act of sexual penetration of a child under the age of 16 in his care, supervision or authority, and two charges of attempting the same offence.

2 The complainant in relation to all the charges was a member of the applicant's extended family. The applicant and the complainant are of middle eastern background. There is an age difference between the complainant and the applicant of approximately 20 years.

3 The complainant was born on 27 April 1995. He turned 16 on 27 April 2011. The periods specified on the indictment during which the offences were alleged to have occurred ran from 27 April 2008, the complainant's 13th birthday, to 26 April 2011, the day before his 16th birthday.

4 A jury was empanelled on 31 March 2016 but was discharged without verdict because of something said in the course of the prosecutor's opening address on 1 April 2016. A second jury was empanelled on 4 April 2016. The complainant had completed his evidence when that jury was discharged on 12 April 2016 in the course of the evidence in chief of the complainant's older sister. A third jury was empanelled on 14 April 2016. Some of the evidence led before that third jury was presented by replaying recordings of evidence which had been led before the second jury. The third jury returned verdicts on 6 May 2016. The applicant was found guilty of six of the 12 sexual penetration charges and the two attempt charges. He was found not guilty on the other six sexual penetration charges.

5 On 26 August 2016 the applicant was sentenced to a total effective sentence of nine years' imprisonment with a non-parole period of six years.

6 The applicant now seeks leave to appeal both his convictions and the sentence. The application was argued on the basis that if leave were granted the appeals would be determined forthwith.

7 The indictment particularised each of the 14 charges by reference to names given to what were said to be specific incidents. These names were adopted and used by counsel, the witnesses, and the judge throughout the trial.

8 The table below sets out the charge number, the name given to the applicable incident, the period specified on the indictment in relation to the charge, and the verdict on that charge. For ease of reference the table is also reproduced as an annexure.

9 It is important to emphasise that it was not the prosecution case that the offences occurred in the order set out on the indictment. The complainant's evidence was that the first three offences were committed in that order. Otherwise, the charges were not said to be in chronological order.

10 Issues of timing were significant in the trial. The applicant's case was that none of the incidents had occurred and that the complainant's allegations against him were entirely fabricated. That was the central issue in the trial and his inability to be specific as to timing was one matter said to affect his credit. But there was also an issue as to whether the Crown had proved beyond reasonable doubt that the complainant was aged under 16 years at the time of certain of the incidents, if they occurred. By the end of the trial this latter issue was confined to charges 4, 5, 6, 7, 8, 10 and 11.

11 The proposed grounds of appeal against conviction are the following:

(1) The verdicts on charges 3 and 7 are unreasonable or unable to be supported having regard to the evidence.

(2) A substantial miscarriage of justice has occurred by reason of the real risk that the jury did not deliver true verdicts according to the evidence.

(4) The learned trial judge erred in failing to direct the jury on the forensic disadvantage experienced by the applicant as a result of the delay in complaint. In particular:

(a) It was not open for his Honour to arrive at the conclusion he did;

(b) His Honour erred in considering that the defence complained of no more than the existence of delay; and/or

(c) His Honour erred in his treatment of the disputed evidence of earlier complaint.

12 There was a ground 3 in the application as filed which concerned the interpreter who had interpreted for the applicant when he was interviewed by police. That proposed ground was abandoned prior to the hearing.

13 The first proposed ground concerns charges 3 (the first tent incident) and 7 (the first bedroom incident). In relation to charge 3, the contention, in brief substance, is that it is inconceivable that the incident as described by the complainant could have occurred. In relation to charge 7, the contention is, again in brief substance, that the jury ought to have had a reasonable doubt as to whether the complainant was under 16 years at the time of the incident he described. This proposed ground relies upon s 276(1)(a) of the Criminal Procedure Act 2009.

14 It is not contended that the guilty verdicts on any of the charges other than charges 3 and 7 were unreasonable or could not be supported having regard to the evidence, and it is not contended that the verdicts are inconsistent.

15 In relation to proposed ground 2 it is contended that a combination of matters reveals that there had been a substantial miscarriage of justice in this case. This proposed ground relies upon s 276(1)(c) of the Criminal Procedure Act. What are contended to be the unreasonable verdicts on charges 3 and 7 are relied upon together with what is described as the 'highly problematic' evidence on charge 9 (the Asian festival incident), the jurors' waning attention during the trial when video recordings of evidence were being played, inappropriate conduct by two jurors during defence counsel's closing address, what is contended to be a long period of deliberation in the course of which what is said to have been 'an extraordinary question' was asked by the jury, the asserted fact that verdicts were delivered after six days of deliberation at 4:07 pm on a Friday afternoon, the fact that the guilty verdicts were majority verdicts, and what is said to be an acquittal on charge 14 which is not explicable on the basis of a reasonable doubt as to the complainant's age which, it is said, could explain the other five acquittals.

16 The complainant did not complain to police until 5 December 2013. His evidence, and the evidence of his sister, was that he made a complaint to her in 2010 which led her to send a message to the applicant. The question of whether a direction should be given to the jury in relation to forensic disadvantage pursuant to s 39 of the Jury Directions Act 2015 was the subject of submissions before the trial judge. Counsel for the applicant requested such a direction. The judge declined to give it on the basis that there was nothing by way of forensic disadvantage that was more than 'the mere existence of delay'. This issue is the subject of proposed ground 4. Whilst not made explicit, this ground relies upon s 276(1)(b) of the Criminal Procedure Act.

17 Whilst only the verdicts on charges 3 and 7 are said to be unreasonable, it is necessary to review relevant aspects of the entire trial because of the breadth of the matters relied upon in relation to proposed ground 2 and in order to properly understand the context of the ruling which is the subject of proposed ground 4.

18 The complainant's evidence was given before the second jury and was video recorded.

19 The complainant described the family relationships. He said that the applicant was a hairdresser who also had an ice-cream van. He said that he worked in the ice-cream van business for the applicant. He said he began training when he was in Grade 6 and aged 12 and that he began work late in 2008 when he was 13.

20 The complainant said that the applicant would pick him up from his house when he was working on the ice-cream van and that he would sleep at the applicant's house so as to be ready to start work early the next day. He said that his older sister was one of the applicant's 'main workers' and that his twin sister also used to work for the applicant. One of his cousins, [Z], also worked for the applicant.

21 The complainant's evidence was that inappropriate conduct by the applicant began when he showed pornographic videos to the complainant and [Z]. He said this happened when he was about 12 years old and [Z] was 13 to 14 years old.

22 The complainant was then asked about whether anything of a sexual nature ever occurred between him and the applicant and he said that that had occurred 'countless times'. When asked about the first time he said it was during the summer break after he had finished Year 7. At that time the complainant was 13 years old.

23 The incident described as 'the first incident' was this first occasion and, according to the complainant's evidence, it happened when he was sleeping over at the applicant's house for the purpose of work in the ice-cream van the next day. His evidence was that the applicant woke him up and made him sit on a lounge beside the TV. He said the applicant 'changed the channel to pornography', placed his hand on the complainant's thigh moving it towards his penis, then pulled his pants down and began to suck his penis and then instructed the complainant to 'place my penis inside his arse'. The complainant said that he tried to do so but that 'it didn't go in'. The complainant's evidence was that the applicant told him not to tell anyone. This is 'the first incident' which is the subject of charges 1 and 2.

24 The complainant was then asked about the next time anything occurred and he said that it was on an occasion when they were in Bendigo or Ballarat at a caravan park where a tent had been set up for the night. This is 'the first tent incident' which is the subject of charge 3. The verdict on charge 3 is one of the two verdicts said to have been unreasonable.

25 The complainant's evidence was that he was sleeping in the tent with a number of his relatives including [Z], other cousins and other adults in addition to the applicant. What he said occurred was the following:

[W]hile sleeping, he came and slept behind me, and then from sleeping behind me after, that evening, everyone was asleep, he pulled my pants down and he had - I remember he used - he spat or something, but used that as a form of lubricant by placing it on my anus, and then he placed his penis into my arse ...'.[2]

26 The complainant gave evidence that this incident happened four to five months after the first incident. When asked about the other people in the tent, the complainant gave evidence that what he had described happened 'numerous times' and on one particular occasion the applicant's mother-in-law who was in the tent had woken up and stared at the applicant but had then just gone back to sleep. When asked whether he had made any noise, he said that he tried to be as quiet as possible and that he did not want to interrupt anyone's sleep. The complainant's evidence was that he was not sure exactly what the applicant did 'after he was done' on this particular occasion because his back was turned to him.

27 The complainant was then asked about a different incident where just he and the applicant had been together in a bungalow at a caravan site. This is 'the bungalow incident' that is the subject of charge 4. The complainant's evidence was that the applicant had anally penetrated him on this occasion as well. The complainant said that he thought the caravan park was called the Golden Nugget and that it was in Bendigo. He was unable to say what year it was or what time of the year it was.

28 He was then asked about another occasion where the extended family including the applicant and himself had gone to a festival and slept in a tent. This is 'the second tent incident' which is the subject of charge 5. He said that on that occasion he had tried to sleep between two of his cousins but that the applicant had insisted that he move. The complainant's evidence was that the applicant again anally penetrated him. When asked in what year this had occurred or how old he was at the time, the complainant said: 'Yeah, I'm not exactly sure. It would have been between the ages of 13 to 16 because that's when I had participated in the festivals out in rural regions'.

29 The complainant was then asked about an occasion when something occurred at a festival during the day time. The complainant said it was the 'same day' as the second tent incident and that the applicant had asked him to go to the supermarket. This is 'the grocery shopping incident', the subject of charge 6. The complainant's evidence was that after returning the applicant and he were alone in the tent and that he again anally penetrated him. On this occasion the complainant's evidence was that he screamed and that that led to the applicant immediately stopping. When asked his age at the time of this incident he replied: 'Again I would have been aged between 13 to 16'.

30 The complainant was then asked about festivals in the Melbourne area and in particular an Asian festival in Footscray. This is 'the Asian festival incident' which is the subject of charge 9. The complainant gave evidence that this incident occurred when he was in Year 9 in 2010. The complainant's evidence was that the applicant and he had been working together at the festival and that when things 'began to quiet down' the applicant had made sure there were no gaps in a foil shade which covered the windscreen of the van, had required him to sit on some boxes next to the driver's seat while the applicant sat in the driver's seat, and had then grabbed the complainant's hand and made him touch the applicant's penis. The complainant said that the applicant had told him to suck his penis and he did so. The complainant said that there were other windows in the van on the sides, and that there was also the opening where people would come to buy ice-cream. He said that this incident happened after things became 'really quiet'.

31 The complainant was next taken to an occasion when he was working with his older sister in the ice-cream van at Brighton. This is 'the Brighton public toilet incident' which is the subject of charge 14. It is also the occasion upon which the complainant and his older sister say that the complainant told his older sister what was happening to him.

32 He was asked what his age was at this time and he said that it was in the summer holidays between Year 8 and Year 9. That would suggest the summer of 2009/2010. The complainant said that he and his older sister were working in the van when the applicant came past and told him to go with him to the local supermarket. He did so. He said that either before or after they went to the supermarket they went into a public toilet. The applicant instructed him to go into the last cubicle, which he did. The complainant said that the applicant then went into the cubicle beside him and slid under the dividing wall. He told the complainant to suck his penis which the complainant did.

33 The complainant was then asked what happened when they returned to the van and the complainant said that he told his sister 'exactly everything that had been happening to me'. The complainant confirmed that this incident happened in 2010 and that he told his sister that it had been happening for three years. His evidence was that he insisted that she not tell their mother.

34 When asked why he did not want his older sister to tell their mother he said that it was because his mother would have been devastated. He also referred to the fact that there had been a family conflict within the extended family and he did not want to create another family conflict. He gave as an additional reason that he had vigorously resisted going with the applicant to work with him ('crying, kicking, screaming') but that his mother had been very insistent that he should go.

35 The complainant's evidence was that notwithstanding his request his older sister had immediately told his mother and that his mother had been very upset.

36 The complainant's evidence was that his older sister contacted the applicant in his presence telling the applicant to stop everything that he had been doing to the complainant and threatening to tell his wife. The complainant said that this contact was 'via text'. The complainant said he did not see the applicant's response. The complainant said the abuse continued.

37 The complainant was then asked about an occasion when he and the applicant had taken goods to the Salvation Army. This is 'the Salvation Army incident' which is the subject of charge 10. The complainant's evidence was that the applicant had taken a detour through an industrial area and that whilst the applicant continued driving, on the applicant's instructions, he had sucked on his penis.

38 The complainant was asked about an incident at Highpoint Shopping Centre. This is 'the Highpoint Shopping Centre incident' which is the subject of charge 11. The complainant's evidence was that the applicant requested that he go into a public toilet and enter the last cubicle, which he did. His evidence was that the applicant then entered the cubicle beside him and 'just like the last occasion' slid under the dividing walls. His evidence was that he was orally penetrated by the applicant.

39 The complainant was asked about another occasion associated with an Asian festival. This is 'the rice pudding incident' which is the subject of charges 12 and 13. The complainant's evidence was that after finishing work at an Asian festival they returned to the applicant's home where he ate some rice pudding. The complainant's evidence was that on the applicant's instructions he sucked on the applicant's penis causing him to gag and vomit the rice pudding which he had eaten earlier. The complainant's evidence was that notwithstanding the vomit the applicant continued inserting and withdrawing his penis repetitively. He said that no one other than them was at the applicant's home at that time. The complainant said that he stayed up watching television that night after the applicant's wife and children had returned home and gone to bed. The complainant said that on the applicant's instructions he again allowed the applicant to place his penis in his mouth that night.

40 The complainant was asked how old he was at the time the rice pudding incident occurred and his evidence as to his age at that time overlapped with evidence he gave about his age in relation to the next incident which he was asked about which was 'the first bedroom incident', the subject of charge 7. The verdict on charge 7 is the other verdict said to be unreasonable. The complainant's evidence was that that incident (charge 7) occurred when he came upon the applicant viewing pornography on his computer, that the applicant had then tried to insert his penis into the complainant's anus but that the complainant had prevented him from doing so by tensing himself, and that the applicant had 'ejaculated on my back'.

41 In relation to the timing of the rice pudding incident and the first bedroom incident the evidence was as follows.

42 When initially asked about his age at the time of the rice pudding incident, he said 'I would have been aged 13 to 16'. When asked whether it was before he had turned 16 he said 'I'm not exactly sure, sorry'.

43 The first bedroom incident was introduced very shortly after the evidence he gave about his age at the time of the rice pudding incident and he was asked how old he was or what year of school he was in on that occasion. He replied: 'Age wise I only recall that again I would only have been aged between 13 to 16'.

When you say '13 to 16' I'm just asking you to say do you include that you actually could have turned 16 or are you saying 13 to 16 in the sense of somewhere between the time you were 13 up until the time before you turned 16? Do you understand the difference? - - - Yes. Yes, so up until the time just before 16.

45 The complainant was referred to the fact that he turned 17 on 27 April 2012. He was asked whether anything of a sexual nature occurred between he and the applicant when he was 17 years old and the complainant said no. He said there was an occasion during 2012, when he was 17, when the applicant had attempted something of a sexual nature but the complainant had 'denied his advances'.

46 The complainant was then referred to the fact that he turned 18 on 27 April 2013. The complainant's evidence was that there was a sexual incident between he and the applicant during Ramadan in 2013 after a visit to a mosque. This was later referred to as 'the mosque incident'.

47 The complainant was then asked about an incident at a warehouse facility in Altona. This is 'the Altona warehouse incident' which is the subject of charge 8. The complainant's evidence was that in a warehouse at Altona where the applicant stored his van he had sucked on the applicant's penis on his instructions. When asked how old he was when this occurred he said that he was not sure and he went on: 'It was some years after I started to work with him, a year or two'. The complainant's evidence was that what he described had happened at the warehouse 'multiple times'.

48 The complainant described in greater detail how he had initially resisted going with the applicant but that his mother had insisted. He said he had not told his mother what was happening because he felt ashamed and because of the other reasons that he had mentioned earlier, including the family history.

49 The complainant was asked whether he had communicated with the applicant from 2011 through until 2013 by way of Facebook messages and he had agreed that he had. Screenshot extracts of the Facebook messages were tendered.

50 The first matter dealt with in cross-examination was the chronology of events. Counsel for the applicant indicated that charges 1 and 2 'might not concern us too much' and he asked him to confirm that at that time he was 13 years of age. He confirmed that that incident occurred between December 2008 and February 2009.

51 Counsel then moved to the first tent incident and asked the complainant to confirm that that had occurred at Easter following charges 1 and 2.

52 In relation to the other charges the complainant said he was not able to put them into chronological order because events of the type which he described had happened numerous times. Dealing with his attendances at the Bendigo festival over the years and 'these festival incidents,' the complainant agreed that when he spoke to police he permitted the possibility he might have been as young as 12 and might have turned 16.

53 He was then asked in detail about the first tent incident. He was asked to describe who was there and he agreed that the tent was crowded.

54 Returning to the chronology he was questioned about the evidence he had given concerning the bungalow at the Golden Nugget and he agreed that that incident occurred within the timeframe 2008 to 2011. He was asked questions about the timing of the second tent incident and the occasion at Brighton when he was present with his older sister. He confirmed that his evidence was he was 14 at the time of the Brighton incident.

55 He was questioned further about the chronology. He agreed that he was not able to help the jury in relation to the timing of the second tent incident. He was not able to put the bungalow incident into a chronological sequence.

56 He was questioned about the Asian festival incident, the Salvation Army incident, the Highpoint Shopping incident and the rice pudding incident. He agreed he was unable to put these events in a chronological sequence. In relation to the Altona warehouse incident it was put to the complainant that that would have occurred at the earliest when he was 12 or 13 and at the latest when he was 15 or 16 and he responded saying it would not have been during the early stages but it would have been around the time the applicant purchased his second van.

57 The complainant agreed with the proposition put to him that 'some of the things you've told the members of the jury occurred after you turned 16'. He agreed that some had occurred after he turned 17 and perhaps even after 18.

58 When questioned further about events when he was over 16 the complainant said: 'So when I was - when I passed 16 years of age, the only sexual incident that I recall taking place between [the applicant] and I was in - was that very incident, the mosque incident'.

59 The cross-examiner then moved from what he described as 'sequences ... to substance'.

60 The complainant was questioned about his evidence concerning the first incident and his evidence of having been shown pornography before that incident. He was taken in some detail through his police statement concerning the first incident. In that context the cross-examiner briefly returned to the issue of timing and asked why the complainant was unable to give timeframes. The complainant responded: 'I've been quite busy in the last two and a half years. I've been focusing on things that, I guess, have been really important for me establishing a career for myself and, again, this is something that I really don't want to reflect on'.

61 At the beginning of the second day of the complainant's cross-examination it was put to him that he had falsely concocted his statement and that the reason he had trouble recalling detail was because he had 'forgotten [his] false script'. The complainant denied these propositions.

62 The complainant was then cross-examined in detail about the first tent incident. He was cross-examined about the crowded conditions in the tent, his inability to recall details, and his failure to make a noise or otherwise react in a way which would have alerted people who were very close to him. Photographs of the tent were tendered. When asked why he had not made a noise or made a complaint the complainant responded: 'Because I knew what was happening was wrong and I didn't want others to know about what was taking place'.

63 He was cross-examined again about the bungalow incident (charge 4) it being put to him that he had placed this incident over an approximate three year period. He was asked whether he could place it in the first half or second half of that period and the complainant said he was unable to do so.

64 The complainant was then taken in detail through the evidence he had given in chief about the Brighton public toilet incident (charge 14). Particular details as to what he said had happened in the public toilet at Brighton were put to him and compared with evidence he had given about the Highpoint Shopping Centre incident (charge 11) which also concerned an alleged offence in a public toilet. It was suggested to him that he had mixed up the two incidents and he responded: 'Quite possibly, yes, conflicting memories between the two'. In the context of dealing with the Brighton public toilet incident (charge 14) the cross-examiner put to the complainant that his problem with details was a result of the fact that he 'forgot the script'. The complainant rejected that.

65 The complainant was cross-examined about the complaint he made to his sister and about the Salvation Army incident (charge 10) it being put to him that when the abuse continued after his complaint he must have hated the applicant. The complainant responded:

Well, with [the applicant], on a personal level he's a really good man. I'm not going to take that away from him; he's a really, really good man, and given that him and I were family, I didn't want, like, any split (indistinct) overall, like the broader sense of the family, but just between him and I at family events and gatherings I didn't want it to be like this awkward scenario where I'm just in his presence, and over the years I did develop that self-confidence to tell him, 'No, this is not right'.

66 The complainant said that his older sister and his mother believed that the conduct against him had ceased but that was not the case. The complainant was cross-examined further about the Salvation Army incident. The complainant said that this was not an unusual incident.

67 The complainant was then cross-examined in detail about the Asian festival incident (charge 9) with an introduction referring to his evidence that the incident had occurred when he was 'probably 14 approaching 15'. Photographs of the van were tendered. The substance of the cross-examination was that it would have been physically very difficult for the complainant and the applicant to position themselves as the complainant had described. The great bulk of the cross-examination about the Asian festival incident (charge 9) concerned this issue, although it was also put to the complainant, and he agreed, that notwithstanding that the applicant had used a foil to cover the front window: 'anyone who walked past the front of the van would have an opportunity to see - if anyone was seated in the driver's seat for example, see a person seated there'. The complainant agreed with that.

68 After lunch on the second day of cross-examination counsel for the applicant put to the complainant that he was making up the Asian festival incident. It was put that what he described could not have happened because of the risk of detection, in response to which the complainant said: 'That's exactly why it's so memorable, because it was conducted in a business setting within the van with such close proximity to others outside of it'. The cross-examination concerning the Asian festival incident continued with the focus, again, being on whether the positioning of the two people as the complainant described them was practical. In that context a DVD depicting the interior of the ice-cream van was tendered. It was put to the complainant that the positions he described were 'very awkward' and he responded 'not really'.

69 The complainant was then taken to the rice pudding incident (charges 12 and 13). He was cross-examined about how the vomit he had described came to be cleaned up and whether the complainant had been angry about him vomiting. The substance of the cross-examination was that his account was not credible in view of what he said about vomiting in relation to the first alleged offence and the fact that the applicant's wife and children were in the house in bed when the second offence was alleged to have occurred.

70 The complainant was then questioned about the Highpoint Shopping Centre incident (charge 11) which, like charge 14, concerned an alleged offence in a public toilet. He was taken in detail through the police statement he had made about that incident. He agreed there were differences between his evidence and the police statement. The complainant said that he had not reviewed his police statement and that the evidence he was giving was the truth as he remembered it.

71 After briefly returning to the Asian festival incident, the cross-examiner then dealt in detail with the first bedroom incident (charge 7). The cross-examiner read out long passages from the evidence he had given in chief about that incident. He also read out a long passage from his police statement. The cross-examiner observed that there was very little variation between what the complainant had told the police and what his evidence had been to the jury. He said 'you get 10 out of 10 almost' and then put to him that he had 'got the script right'. The complainant rejected that.

72 In the light of the submissions made to us it is important to note that notwithstanding the long passage read from the complainant's evidence concerning the first bedroom incident (charge 7) he was not read or challenged upon the evidence in chief which he had given as to his age at the time of that incident. It will be recalled that in the context of that incident he had said it happened when he was 13 to 16 and that when he said 13 to 16 he meant 'up until the time just before 16'.

73 At the beginning of the complainant's third day of cross-examination he was asked about the evidence he had given concerning the complaint made to his sister at Brighton. He confirmed that the complaint he made to his sister was made after he had returned to the van following the Brighton public toilet incident (charge 14). He said that he had told his sister not to tell his mother. He agreed that he had told his sister that the abuse had been happening for three years. He said that he had said three years because he was thinking of three school years. He was cross-examined at some length in relation to that issue with particular reference to evidence he had given at the committal.

74 The cross-examiner then returned to issues of timing. The complainant agreed that when he made his police statement he had had no idea that turning 16 was 'an important factor' and at no stage when telling his story had he paid attention to the significance of turning 16.

75 The complainant was then cross-examined about relations with his family and problems he had experienced which had caused him to leave home.

76 After a brief voir dire concerning the use of material obtained from Facebook, the complainant's cross-examination continued. He agreed that he had struggled with his studies and said that he had had 'psychological symptoms'.

77 The complainant was cross-examined at length about Facebook communications between he and the applicant. In substance it was put to him that the Facebook contacts revealed a positive relationship with the applicant whereby the complainant was seeking to work with him, introducing others to work with him, and making arrangements to see him for haircuts.

78 When it was put to the complainant that he could have avoided contact with the applicant he responded by referring to the fact that his family was from a very low socio-economic background, that his father was schizophrenic, and that his mother had to look after the family relying on Centrelink. He said he had no money to buy clothes or go out with friends and that he was dependent upon the applicant to earn money so that he could sustain his life. He also said that what happened between he and the applicant 'became a norm'.

79 The complainant was then cross-examined further about the Facebook communications.

80 The complainant was briefly cross-examined further about some of the incidents and it was put to him that in relation to each and every incident he had lied. He denied lying.

81 The complainant's re-examination concentrated on the issue of his age at the time of various of the incidents.

82 In relation to the first bedroom incident (charge 7) he was referred to his statement to police that he 'would have been under 16' and asked whether he was telling the truth and he said that he was.

83 In relation to the Asian festival incident (charge 9) he was asked about the windows on the van. He said that the side windows were tinted which prevented people from outside looking in.

84 Travis Johnston from the 'Gold Nugget Tourist Park' in Bendigo gave evidence producing records of reservations made for or on behalf of the applicant in April 2006, March 2008, April 2009 and March-April 2013.

85 The next witness called on behalf of the prosecution was the complainant's older sister. Her evidence commenced (and was video recorded) before the second jury. She referred to the fact that her father had schizophrenia and was also physically disabled. She said that the applicant had an ice-cream business and that she had worked in it from when she was 13 or 14, in approximately 2007, until she was in Year 11, which she said was in 2010. She said that the complainant had also worked in the ice-cream business. She said that she thought that it was rare for him to work in the van and she could not remember him doing it a lot of times. She said they had only worked together once.

86 She described incidents where the applicant would come to pick up the complainant for some reason and the complainant would react 'really strangely' saying he did not want to go but she said that their mother would try to persuade him to go. On one occasion he 'went really hysterical' and his mother let the complainant stay home.

87 The complainant's older sister gave evidence that on one occasion she and the complainant worked together in the ice-cream van at Brighton Beach. She said that she thought she was then 14 and he was must have been 13.

88 The complainant's older sister's account of what occurred that day differed from the account which the complainant had given. They both said that the complainant had complained to his sister that the applicant was sexually abusing him. Otherwise, there were inconsistencies. The complainant's older sister said that the complaint was made to her after the applicant had arrived and had requested the complainant to go with him to clean the ice-cream van. Her evidence was that it was in that context that the complainant told her what had been happening. She said that she had tried to prevent him leaving with the applicant, unsuccessfully. Her evidence was that she had persuaded him that she should tell their mother.

89 The complainant's older sister gave evidence as to what occurred when she told their mother. She said that she then confronted the applicant through a message on Facebook saying that she knew what he was doing and threatening to tell his wife and family. Her evidence as to his response addressed a phone call rather than the Facebook message. She said that he maintained it was not true.

90 In the context of giving this evidence the complainant's older sister made oblique references to inadmissible uncharged acts. She said 'I was also touched' and she referred to a further confrontation with the applicant 'because I found out more - like, other things happened that I can't talk about'. This was a reference to allegations made by people other than the complainant.

The second jury is discharged and judge rules on pre-recording

91 As a result of what the complainant's older sister said the second jury was discharged.

92 The judge ruled that the recording of the evidence of the complainant in the aborted trial be admitted in the new trial, that the evidence of the complainant's mother be pre-recorded, and that the uncompleted evidence of the complainant's older sister be completed and recorded and edited.

93 The evidence of the complainant's older sister then resumed and she was cross-examined. Differences between her recollection of the circumstances of the complainant's complaint to her and her own recollection were put to her. She accepted the differences but said that what she had described accorded with her memory of what had happened.

94 She was cross-examined about her evidence that she had confronted the applicant on Facebook. She said that she had deleted the relevant messages but that she had taken a screenshot of them prior to doing so. She said she had not provided the screenshot to police but that she thought it was still in the hard drive which her brother had.

95 The complainant's mother then gave evidence which was also to be recorded. Her evidence was not inconsistent with the evidence of the complainant and the complainant's older sister but it was evidence which was difficult to follow. It was not clear that the complainant himself had ever made a complaint to her. After hearing argument the judge ruled that her evidence be excluded in its entirety.

97 The pre-recorded evidence of the complainant and his older sister were played to the jury.

98 The judge was concerned from the outset that the extent of the pre-recorded evidence would cause the jurors' attention to wane. He took steps to address that problem by playing the evidence in 30 minute sessions. From time to time he made observations to the effect that the jury were 'lagging' and, when he observed that, he took a break. At one point he increased the sessions to 40 minutes, but when he thought that the jury might have been 'waning' he went back to 30 minutes.

99 The final witness for the prosecution was the police officer acting as 'substitute informant'. She produced photographs, and she produced a DVD and transcript of a record of interview conducted with the applicant.

100 Prior to the trial the prosecution had given notice of an intention to rely on what were said to be lies in the applicant's record of interview as incriminating conduct within the meaning of Division 1 of Part 4 of the Jury Directions Act. There were four passages in the record of interview relied on in the notice.

101 At the trial the prosecution sought to rely on three of the four passages as constituting implied admissions. The judge rejected the prosecution's application in relation to two of those passages, but accepted that one passage was capable of constituting an implied admission.

102 The passage the prosecution was permitted to rely upon as an implied admission was a passage which the prosecution contended contained a false assertion that the complainant had not worked for the applicant in the ice-cream van. The judge ruled that that passage was capable of being viewed by the jury as a lie constituting an implied admission 'in that he denies the employer-employee relationship and seeks to distance himself from the complainant in circumstances where it is asserted that the offences took place whilst the complainant was working for the accused'.

103 No complaint is made in relation to this ruling.

104 When the applicant gave evidence he gave an explanation for what he had said. It suffices to say for present purposes that it was open to the jury to view the relevant passage in the record of interview in the way the judge ruled.

105 The judge heard a no case submission in relation to charge 4 (the bungalow incident), charge 5 (the second tent incident), charge 6 (the grocery shopping incident), charge 8 (the Altona warehouse incident) and charge 11 (the Highpoint Shopping Centre incident). In each case the no case submission was based upon the issue of the complainant's age at the time of the offence.

106 The judge ruled that there was sufficient evidence to go to the jury on each of these charges. In that respect he particularly relied upon the evidence the complainant had given that there was only one sexual incident after he turned 16 and that that was the mosque incident.

107 The applicant was subsequently acquitted on these five charges.

108 The applicant gave evidence in which he denied that any of the incidents alleged by the complainant had occurred.

109 He said that the complainant had worked for him from time to time.

110 He said that the complainant had stayed in the tent at Bendigo in 2009 (charge 3) but that he had not worked in the van at that event. He described in detail the circumstances in the tent on that occasion. He said there were 'around' three mattresses inside the tent upon which everybody slept, the males on one side and the females on the other.

111 He described the circumstances in which he was interviewed by police. He said he had been told by his wife approximately a week before the interview that he had been accused of sexual harassment of the complainant. He said he had never been spoken to critically by the complainant's sister about having sexually assaulted her brother.

112 He denied that any of the penetrations or attempted penetrations alleged had occurred.

113 The applicant's evidence was that he had stayed in a bungalow at the Gold Nugget in 2006 with his own family.

114 The applicant was cross-examined about the family relationships and he agreed that he had been 'a significant adult male person' in the complainant's life.

115 When cross-examined, he was taken to what he had said in the record of interview about the complainant working for him. The relevant interchange was as follows:

Do you agree that you told the police in the interview that they conducted with you that [complainant] had never worked for you and that it was only his sisters ... that had worked for you? - - - [Complainant] didn't work when he was young. [Complainant], he start to work in between 2010 to 2011 when I - you know, I start to help him by giving - assisting him by giving him work and, you know, give him money.

But haven't you just told the jury that he did work for you on a trial basis from the 2008-2009 summer? - - - In trial he worked only for one day, not the whole summer.

...

Do you agree that you told the police that [complainant] had never worked for you? - - - (Through Interpreter) I agree that he didn't work when he was young, but when he was - in 2010-2011 he worked for me.

116 He was questioned further about the particular answers he had given.

117 He was cross-examined about the time the complainant had stayed in the tent at Bendigo, and was cross-examined about the complainant's evidence that he had slept over at the applicant's house. The applicant said that he may have slept over two or three times and added that that was with [Z].

118 In addition to the part of the record of interview which the prosecution maintained contained a statement that the complainant had never worked for him it was put to the applicant that throughout the record of interview he had minimised or understated the access and relationship which he had had with the complainant.

119 The applicant called evidence of his good character from three witnesses. The substance of their evidence was that he was a person with a reputation for honesty and integrity. They were not cross-examined.

120 The applicant's wife gave evidence. Her evidence was that the complainant began working with the applicant in August 2010. When asked how many times he had worked for the applicant she said: 'Very rarely. I wouldn't say any more than ten times'.

121 She gave evidence about photographs she had taken. She said that she had never noticed semen stains on any of her husband's shirts. The relevance of that evidence was that the complainant had said the applicant often ejaculated and covered it with his shirt.

122 It is unnecessary to go into the final addresses in detail for present purposes save to observe that the prosecutor expressly acknowledged problems with timing in relation to some of the charges. He told the jury that if an event happened after the complainant turned 16 the Crown case had to fail, but he asked them to keep in mind the complainant's evidence that the only incident which had occurred after he was 16 was the mosque incident. Addressing the charges individually, the prosecutor, it seems to us, effectively conceded that there were problems in relation to the complainant's age on charges 4, 5, 6 and 11. With respect to charge 8 the prosecutor told the jury that the complainant had 'variously said that it was one, two or maybe three years after he'd started training or working as a 12 year old in grade 6 in 2007'. He put to the jury that three summers after 2007 was still before his 16th birthday on 27 April 2011. These were the five charges (4, 5, 6, 8 and 11) which had been the subject of the no case submission. The applicant was acquitted on these five charges.

123 The issue of delay and the effect of delay on the defence case was addressed at some length by counsel for the applicant in his final address. Prior to final addresses counsel for the applicant had sought a direction in relation to forensic disadvantage as a consequence of delay. After final addresses the judge declined to give that direction. That ruling is the subject of proposed ground 4.

124 At one point, just prior to a break, in the course of the final address of the applicant's counsel, the judge made the following observation to the jury:

Now, ladies and gentleman of the jury, it's very important that you give your undivided attention to counsel when counsel is addressing you. It is the one chance - the once [sic] chance that counsel has to put their arguments to you in respect of a most serious criminal matter.

125 In the absence of the jury, the judge explained that he had been prompted to make that remark because two of the younger members of the jury had been 'smirking and smiling and joking between themselves'. He said that this had concerned him greatly. The judge suggested taking other steps such as separating the jurors concerned but counsel for the applicant said he would discourage that. Counsel for the applicant suggested that the smirking may have been a consequence of him having repeated himself. Nothing further was said or done about the incident.

126 In the course of his final address counsel for the applicant raised the matters now relied upon before us as to the incredibility of the complainant's account of the first tent incident (charge 3), and as to what was said to be the 'palpable absurdity' of the complainant's account of the Asian festival incident given the physical dimensions of the van (charge 9).

127 In the course of the judge's charge he told the jury that there were two issues in the case. The first was whether the Crown had proved beyond reasonable doubt that the acts that founded each of the charges had occurred. The second, which he said related only to charges 4, 5, 6, 7, 8, 10 and 11, was whether the Crown had proved beyond reasonable doubt that the complainant was aged under 16 at the time of the incidents.

128 The judge summarised the evidence in some detail. He did not separately summarise counsel's addresses although he referred from time to time to the submissions counsel had made. The judge took particular care to take the jury through the specific evidence given about the complainant's age in relation to each of the charges where that was an issue.

129 The judge gave all the standard directions that would be expected, including a separate consideration direction which emphasised that the evidence in relation to each charge must be separately considered and that they should not 'cross pollinate one into the other'.

130 At 1:12 pm on Friday 29 April 2016 the jury retired to consider their verdict.

131 On 4 May 2016 the jury asked to watch the evidence of the complainant in relation to the Salvation Army incident (charge 10), and they did so.

132 On the afternoon of 5 May 2016, the judge gave the jury a perseverance direction and directed them that he would accept a majority verdict. Later that day the jury delivered a note with the following question: 'If a belief is held that elements of an event may have happened, is that enough to affirm it happened in relation to the charge?'

133 The question was interpreted as revealing the need for re-direction on the standard and burden of proof, and that is what the judge did. In addressing the question the judge and counsel concentrated on the part of the question that read 'may have happened'. Counsel for the applicant was also concerned that the question did not address the issue of the complainant's age. The judge also re-directed the jury on that issue.

134 The jury delivered its verdict at 4:10 pm on Friday 6 May 2016.

Proposed ground 1 - verdicts on charges 3 and 7 are unreasonable or unable to be supported

135 The applicant relied upon the judgment of French CJ, Gummow and Kiefel JJ in SKA v The Queen where they set out the task of a court of criminal appeal in relation to a ground of this kind.[3] The principles are clear and were not contentious. The starting point is that it is the jury that is the body entrusted with the primary responsibility of determining guilt or innocence and it is the jury that has had the benefit of seeing and hearing the witness. The relevant issue is whether upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. In most cases a doubt experienced by the appellate court will be a doubt which a jury ought also to have experienced.

136 In relation to charge 3 (the first tent incident) the contention of the applicant was a simple one. It was submitted that it was inconceivable that what the complainant had described had occurred. It was said to be inconceivable that an adult, with no prior convictions, would anally penetrate a boy under 16, for the first time, in a crowded tent, with other adults close by, without the victim crying out or otherwise alerting others to what was occurring.

137 The first point to be made about this submission is that whilst this was, according to the complainant, the first occasion upon which he was anally penetrated by the applicant, it was not the first occasion of sexual interaction between the complainant and the applicant. According to the complainant, the applicant had previously shown him pornography, and had engaged in the sexual activities (oral penetration and attempted anal penetration of the applicant by the complainant) in relation to the first incident (charges 1 and 2).

138 It is certainly true that the conduct described by the complainant was brazen and risky. We do not accept that it is so unusual as to be incapable of belief. The complainant was cross-examined on the issues said to render his evidence incapable of acceptance. He maintained his account and provided explanations. It was open to the jury to accept his evidence.

139 In essence, the submissions made on charge 3 sought to impugn the jury's assessment of what lies credibly within the realm of human experience. An appellate court should be very cautious about characterising as unreasonable a jury's view on such an issue.

140 The proposed ground in relation to charge 3 was arguable and we would grant leave to appeal, but we do not uphold this ground. It was open to the jury to accept the credibility of the complainant's account and it was accordingly open to convict the applicant on charge 3.

141 The other charge in relation to which it is said that the verdict is unreasonable or unable to be supported having regard to the evidence is charge 7 (the first bedroom incident). The contention here is that the jury ought to have had a reasonable doubt about whether the complainant was under 16 at the time of the incident.

142 The complainant's relevant evidence in examination in chief, cross-examination, and re-examination on this charge has been set out earlier. In evidence in chief he initially said that he would have been aged between 13 to 16, and when asked to clarify that, said 'up until the time just before 16'. In re-examination he attested to the truth of the statement he had made to police that at the time of the first bedroom incident (charge 7) he 'would have been under 16'.

143 Importantly in this context, notwithstanding detailed cross-examination about charge 7 where long extracts of his evidence in chief and his police statement were read to him, the complainant's evidence as to his age was not challenged in cross-examination.

144 When the complainant's specific evidence as to his age at the time of charge 7 is combined with his evidence that the only sexual interaction which occurred after he turned 16 was the mosque incident, in our view it cannot be concluded that it was not open to the jury to be satisfied beyond reasonable doubt that the complainant was under 16 at the time of the first bedroom incident (charge 7).

145 Again, in our view the proposed ground concerning charge 7 was arguable and we would grant leave to appeal. We do not uphold this ground.

Proposed ground 2 - real risk the jury did not deliver true verdicts

146 The applicant relied upon a series of circumstances in relation to this proposed ground. We have previously set them out. It is necessary to address them individually, and to also consider their combined effect. Counsel for the applicant submitted that, when looked at together, the circumstances relied upon revealed that something had clearly gone seriously wrong.

147 The applicant firstly relied upon the concerns as to the reasonableness of the guilty verdicts on charges 3 and 7. We have dealt with those charges in the context of proposed ground 1. It was open to the jury to convict. We accept that there were matters which could have led a jury to have a reasonable doubt. That, in isolation, could not warrant a conclusion a substantial miscarriage of justice had occurred.

148 The next matter relied upon is what is said to be the 'highly problematic' evidence on charge 9. Charge 9 concerned the Asian festival incident. It was submitted that the description given by the complainant was improbable both in terms of the physical arrangements inside the van, and because of the risk of detection through the windows that were not covered up.

149 The complainant was cross-examined at length as to the physical arrangements inside the van. We have considered that cross-examination and looked at the tendered photos and watched the tendered DVD. The complainant was not prepared to accept that the physical arrangements made what he had described even 'awkward'. As to the risk of detection, the complainant accepted the existence of that risk, although his evidence was that the event occurred only after business had become 'really quiet', and his evidence also was that the side windows were tinted so that it was not possible to see in through those windows. He did accept that it would have been possible for someone to see in through the window through which the ice-cream was served. He agreed that there had been a risk of detection.

150 The submissions in relation to charge 9 reflected in some ways the submissions made on proposed ground 1 in relation to charge 3. The verdict on charge 9 is not said to be unreasonable or not supportable having regard to the evidence. As with charge 3, it was open to the jury to convict on charge 9, but there were circumstances which could have led a jury to have a reasonable doubt. Considered in isolation the verdict on charge 9 could not warrant a conclusion that there had been a substantial miscarriage of justice.

151 The next factor relied upon was the judge's observations that at times the jury's attention was 'waning' during the pre-recorded evidence. That is hardly surprising given the extent of the pre-recorded evidence in this case. The judge was clearly very conscious of the issue, and he took steps to address it as soon as he detected any problem. This is clear in the transcript. There is no basis for concern here, in our view.

152 The applicant also relies upon the incident where two jurors were apparently smiling or smirking during defence counsel's closing address. The judge dealt with the matter swiftly. Defence counsel saw what had occurred and did not seek anything further beyond what the judge did. Again, we see no basis for concern.

153 The applicant places particular reliance upon the question asked by the jury; the focus being, as it was at the trial, on the use of the term 'may have happened'.

154 If the jury had a misconception that a conclusion that something 'may have happened' (in the sense that it was possible) was sufficient to convict, that was a misconception which the judge addressed firmly and immediately in terms which were in accordance with defence counsel's submissions.

155 We are not persuaded that the jury's question does necessarily reveal such a misconception. The nuances of terms such as 'may' and 'would' are matters as to which lawyers are very sensitive, but the use of such language by lay people does not necessarily reflect the same sensitivity. We think it unlikely the jury had a misconception about the burden of proof, a matter upon which the judge had directed them clearly and repeatedly. It seems to us that the true focus of the jury's concern may be found in the phrase 'in relation to the charge'. That concern might have been prompted by their consideration of charges 11 and 14, to which we refer below. In any event, any misconception was dealt with appropriately by the judge.

156 The applicant relies upon the fact that the jury deliberated for a week, that the verdicts were delivered on a Friday afternoon, and that the guilty verdicts were majority verdicts. It does not seem to us that any of those matters is a cause of concern.

157 Finally, the applicant submits that the applicant was acquitted on six charges and that a 'deficiency of evidence' in relation to the complainant's age could only explain five of them, being the five charges (charges 4, 5, 6, 8 and 11) which were the subject of the no case submission. The applicant submits that the acquittal on charge 14 is not explicable on that basis and that, whilst an issue to the effect that the verdicts were strictly inconsistent does not arise, this is a matter which 'does raise the distinct possibility of a compromise verdict'.

158 The acquittals on charges 4, 5, 6, 8 and 11 are explicable by reference to the evidence the complainant himself gave as to his age at the time of the incidents which were the subject of those charges. In relation to charge 14, we do not consider that the acquittal on that charge raises a relevant concern.

159 There were two significant problems with charge 14 which render the verdict explicable.

160 The first was that the complainant himself accepted that the circumstances of charges 11 and 14 were 'mixed up' in his own mind. Both incidents are said to have taken place in public toilets in similar circumstances. The jury's acquittal on both of those charges is explicable on the complainant's own evidence. It seems to us that the jury's question may well have been prompted by a conclusion that an event, or events, of the kind the complainant had described in the public toilets had occurred, but the jury were unable to conclude beyond reasonable doubt that that event, or those events, had occurred as charged, that is in the course of the Brighton public toilet incident or the Highpoint Shopping Centre incident. The direction the judge had given the jury on separate consideration and the warning he had given about 'cross pollination' was particularly relevant to charge 14.

161 The second significant problem with charge 14 was the differences between the complainant and his older sister in relation to the relevant events. They both said that the complaint which the complainant made to his sister about the applicant was made in the ice-cream van at Brighton on the day they worked together. Their accounts were fairly consistent on that issue. As to the substance of the complaint that was made, they differed only on the issue of whether the complainant had said that his sister could tell his mother. However, they differed very significantly in relation to the other events that day, and the Brighton public toilet incident was itself one of those events. The complainant said he was taken away by the applicant to go to a supermarket, was offended against in a public toilet, and then returned to the ice-cream van where he complained to his sister. His sister's account was that she and the complainant were working at the van when the applicant came and requested that the complainant leave with him to clean the van. The complainant's sister said that it was in the context of that request that the complaint was made to her and that she then tried unsuccessfully to resist the applicant's attempts to take the complainant away. The evidence of the complainant's older sister may well have fortified a doubt the jury had as to whether the event which the complainant described had happened as charged.

162 Considered individually, none of the matters relied upon in relation to proposed ground 2 warrant a conclusion that there has been a substantial miscarriage of justice as required by s 276(1)(c) of the Criminal Procedure Act.

163 When considered in combination, our conclusion is the same.

164 Some of the matters relied upon do not give rise to any basis for concern, as already explained.

165 The matters relied upon in relation to charges 3 and 7, charge 9, the jury question and charge 14, considered together, are sufficiently arguable to warrant a grant of leave to appeal and we would grant leave to appeal on this proposed ground on that basis. But we reject this ground because we are unpersuaded that the circumstances referred to in combination lead to a conclusion that a substantial miscarriage of justice has occurred, as required by s 276(1)(c).

166 The convictions on charges 3, 7 and 9 were open. If the jury question revealed a misconception that was addressed clearly and correctly. The acquittal on charge 14 is explicable.

167 Indeed, in our view, the acquittals on the five charges which were the subject of the no case submission, and on charge 14 given the matters we have addressed, indicate that the jury diligently applied the directions they were given, particularly as to the burden and standard of proof and as to separate consideration.

168 Having reviewed the transcript of the entire trial, we reject the applicant's contention that something had clearly gone seriously wrong here. We find the jury verdicts comprehensible and consistent with the proper performance of their duties.

Proposed ground 4 - refusal to give a direction as to forensic disadvantage

169 Proposed ground 4 asserts that the trial judge erred in failing to direct the jury on the forensic disadvantage experienced by the applicant as a result of the delay in complaint. The proposed ground further asserts that it was not open for the trial judge to arrive at the conclusion he did, that he erroneously considered that the defence complained of no more than the existence of delay, and that he erred in his treatment of the disputed evidence concerning the complainant's complaint to his sister.

170 The applicable legal principles were not addressed in any detail before us, but it is necessary to briefly review them.

171 The common law rules in relation to directions concerning delayed complaint derive from Longman v The Queen.[4] Longman concerned a prosecution for sexual offences alleged to have occurred more than twenty years prior to the first report to the police. In those circumstances Brennan, Dawson and Toohey JJ concluded that:

The jury should have been told that, as the evidence of the complainant could not be adequately tested after the passage of more than twenty years, it would be dangerous to convict on that evidence alone unless the jury, scrutinizing the evidence with great care, considering the circumstances relevant to its evaluation and paying heed to the warning, were satisfied of its truth and accuracy.[5]

172 The application of what was then referred to as the 'Longman warning' changed in 2006 with the enactment of s 61(1A)-(1F) of the Crimes Act 1958. The new provisions applied to trials for specified sex offences. In broad terms they required a judge to give certain directions to the jury, on application by the accused, if the judge was satisfied that the accused had suffered 'a significant forensic disadvantage because of the consequences of the delay in making a complaint': s 61(1A). The passage of time alone was not to be taken to cause a significant forensic disadvantage: s 61(1C). The new provisions also provided, in effect, that the judge was not to give the Longman warning and was to inform the jury that there may be good reasons why a victim of a sexual assault may delay or hesitate in complaining.

173 In 2010 the position changed again with the commencement of s 165B of the Evidence Act 2008. Section 165B of the Evidence Act was broadly similar to s 61(1A)-(1F) of the Crimes Act but it applied to any criminal proceeding involving a jury.[6] Like s 61(1A)-(1F), it required a direction to be given where the court was satisfied that the accused had suffered 'a significant forensic disadvantage because of the consequences of delay'.

174 The issue of what constituted a 'significant forensic disadvantage' was considered by this Court in PT v The Queen.[7] The applicant had been convicted of sexual offences against a young member of his family which were alleged to have occurred in 1990 and 1992. The first complaint to police had been made in 2005. At the trial a forensic disadvantage direction had been requested. The trial judge had refused to give that direction because she was not satisfied that the accused had suffered a significant forensic disadvantage.

175 The disadvantages which it was contended had been suffered in PT were an inability to prove whether the family had been living in the house where the complainant said the offending had occurred at the time, an inability to confirm the layout and design of the house at the time, an inability to conduct inquiries of the family doctor at the relevant time, an inability to conduct inquiries of the complainant's teachers at the relevant time, and an inability to establish an alibi.

176 This Court upheld the trial judge's decision. The Court said:

The phrase 'significant forensic disadvantage' requires examination of the consequences of the delay for the accused in relation to the particular case. Such disadvantage arises not because of delay itself, but because of the consequences of delay. For example, it may be that potential witnesses have died, or are not now able to be located. Alternatively, potential evidence may have been lost or is otherwise unavailable.

What is clear, however, is that the defendant who seeks the warning carries the onus of satisfying the Court that he or she has in fact suffered a significant forensic disadvantage, and that this arises because of the delay that has occurred. A hypothetical disadvantage will not be sufficient. A leading text on the Evidence Acts cites the joint view of the Australian, New South Wales and Victorian Law Reform Commissions, which was reflected in the Explanatory Memorandum to the Evidence Amendment Bill 2008 (Cth), to the effect that:

A warning should not be given unless the delay has placed the defendant at a significant forensic disadvantage and the particular risks of prejudice must be identifiable.

The learned authors further note the view of the Law Reform Commissions that '... the general or nebulous disadvantage' that a defendant might suffer could be raised by counsel in closing address and need not be underscored by the trial judge.

...

As noted in Odgers, Uniform Evidence Law, the provision does not preclude the Court from deciding, in the circumstances of a particular case, that the delay is of such magnitude that significant forensic disadvantage is a matter of necessary inference. But the clear focus of the provision is on identification of the particular consequences of the delay which give rise to significant disadvantage.[8]

177 When dealing with the specific disadvantages contended for in PT this Court again emphasised the need for precise identification.[9] The Court found that the requirements of the legislation were not met. In substance, the asserted disadvantages were found to be speculative or matters as to which there could be no confidence that the defence case would have been assisted had an earlier complaint been made.[10]

178 This Court considered the matter again in Greensill. That was another case of alleged sexual offences. The delay between the alleged offending and the trial was 30 years. This Court indicated fairly clearly, in our view, that a forensic disadvantage direction ought to have been given in that case. The problem confronted by the appellant there was that the direction had been eschewed by her counsel at trial. The circumstances in that case which ought to have led to the giving of the direction (putting to one side the position adopted by trial counsel) were threefold. Firstly, in that case the Court appeared to take the view that the passage of time itself (30 years) meant that it was 'next to impossible' to explore the circumstances surrounding the complainants' accounts. Second, the offending was alleged to have occurred between two eight year old boys and a 28 year old woman. Given the passage of time it was not possible to obtain medical evidence as to whether what the complainants alleged was physically possible. Finally, a witness who might have been important had died.

179 This Court considered the issue again in Jurj v The Queen.[11] This appeal concerned convictions for rape and related offences said to have been perpetrated upon a 14 year old girl in a deserted factory by two men who met her for the first time on the night of the offences. The offences were alleged to have occurred on 5 April 2009. The initial complaint to police was not made until July 2009. The delay between the offences and the complaint was approximately three months. The delay between the offences and the first trial was approximately two and a half years. The matters which were said to constitute a significant forensic disadvantage were the absence of a medical examination which might have revealed the presence or absence of injuries which the complainant maintained that she had sustained, and the loss of the opportunity to forensically examine and obtain DNA from clothing, bedding, or other objects at what was alleged to be the crime scene. A forensic disadvantage direction was given and the issue before this Court was the adequacy of that direction and as to whether its impact had been impermissibly reduced by additional observations made by the trial judge. For present purposes it is noteworthy that it was accepted that, in the circumstances of that case, forensic disadvantage constituted by a lost opportunity for a medical examination and forensic testing was a significant forensic disadvantage.

180 In this context reference should also be made to this Court's decision in Pate (a Pseudonym) v The Queen.[12] Again the issue in that case was the adequacy of the direction that was given, an issue upon which the judges of the Court disagreed. For present purposes, it is noteworthy that the absence of evidence as to a contemporaneous medical examination was one of the circumstances which had led the trial judge to give the relevant direction in that trial. In that case the complainant's evidence was that she had been taken to the doctor by her mother the day after the alleged offence after complaining of soreness which was consistent with the offending which she contended had occurred. The delay in complaint had meant evidence of that examination was not available.

181 The legislative position changed again in 2015 with the introduction of the Jury Directions Act. The position is now governed by ss 38 and 39 of that Act which provide as follows:

38 Definition

In this Division -

forensic disadvantage means a disadvantage (that is more than the mere existence of delay) to the accused in -

(a) challenging, adducing or giving evidence; or

(b) conducting his or her case -

because of the consequences of delay due to the period of time that has elapsed between the alleged offence and the trial.

39 Direction on significant forensic disadvantage

(1) Defence counsel may request under section 12 that the trial judge direct the jury on forensic disadvantage experienced by the accused.

(2) The trial judge may direct the jury as referred to in subsection (1) only if the trial judge is satisfied that the accused has experienced a significant forensic disadvantage.

(3) In giving a direction referred to in subsection (1), the trial judge -

(a) must inform the jury of -

(i) the nature of the disadvantage experienced by the accused; and

(ii) the need to take the disadvantage into account when considering the evidence; and

(b) must not say, or suggest in any way, to the jury that -

(i) it would be dangerous or unsafe to convict the accused; or

(ii) the complainant's evidence should be scrutinised with great care.

182 Section 14 of the Jury Directions Act requires a trial judge to give the jury a requested direction unless there are good reasons for not doing so.

183 Division 2 of Part 5 of the Jury Directions Act, amongst other things, requires trial judges to direct juries in a sex offence case where delayed complaint is raised that people react differently to sexual offences and that delay in complaint is a common occurrence. The trial judge gave those directions in this case.

184 These provisions in one respect further restrict the circumstances in which a forensic disadvantage direction can be given. Whereas previously the direction had to be given if a significant forensic disadvantage was found, but could be given in other circumstances, s 39 provides that the direction can be given 'only if' the judge is satisfied that the accused has experienced a significant forensic disadvantage.[13]

185 In May of this year this Court considered the new legislation in Mulligan (a Pseudonym) v The Queen.[14] This was an appeal from convictions for rape and related offences which were alleged to have occurred in late 2012. The trial was in September 2015. The issue in that case was not delay in complaint. The Court observed that there had been 'no long delay between the alleged offences and the complaint being made. The applicant, in facing the complaint evidence of [the complainant], was not asked to defend himself against allegations concerning events that occurred long ago.'[15] The concern in that case was that in the course of the complainant's evidence in chief she had suggested a different specific date upon which the offences had occurred (19 November 2012) to the date she had previously maintained (2 December 2012). It was suggested that a significant forensic disadvantage had been suffered as a result because certain telephone and Facebook records, upon which the accused relied, had thereby had reduced impact and because the opportunity to obtain similar material about the earlier date had been lost. The trial judge was not satisfied that there had been a significant forensic disadvantage and this Court upheld that decision.[16]

186 In the light of this review, it seems to us that the relevant principles applicable here are as follows:

(1) The origins of the relevant concern are to be found in historic sex offence cases and the decision of the High Court in Longman.

(2) The forensic disadvantage governed by s 39 is a disadvantage occurring because of the consequences of delay between the alleged offence and the trial.

(3) The disadvantage must be of a forensic nature; that is, a disadvantage suffered by the accused in challenging, adducing or giving evidence, or in conducting the accused's case.

(4) The direction can only be given if the trial judge is satisfied that the accused has experienced a significant forensic disadvantage.

(5) There are disadvantages as a consequence of delay which do not warrant a direction under s 39. These disadvantages can be adequately dealt with in counsels' addresses and do not require a judicial direction.

(6) The accused has the onus of establishing that the consequences of delay give rise to a significant forensic disadvantage.

(7) It is incumbent upon the accused to identify the particular risks of prejudice which constitute the significant forensic disadvantage.

(8) A loss of opportunity to obtain evidence of a contemporaneous medical examination which had occurred (Pate), or medical or other scientific investigations which might have been undertaken (Jurj), or expert medical opinion which might have been obtained (Greensill), could, in a particular case, constitute a significant forensic disadvantage.

187 In this case defence counsel at the trial requested under s 12 of the Jury Directions Act the direction provided for in s 39. Initially, the need for the direction was put to the trial judge on the basis that delay had caused the complainant to be unable to remember the circumstances of the alleged offences in detail and that this had had the consequent effect that the accused was unable to explore those circumstances in detail. The trial judge suggested to defence counsel that the complainant's explanation for his inability to recall details was the multiplicity of offending acts rather than delay. Defence counsel also identified the following specific disadvantages: the inability to identify an alibi, the absence of forensic scientific examination of the accused's shirts for semen and the carpet in the accused's home for vomit, and the diminished impact of evidence given that pornographic material had not been found on the accused's computer. The trial judge expressed a tentative conclusion against giving the direction but deferred a final decision until after final addresses.

188 In the course of the submissions made to the trial judge before the final addresses the judge made reference to the disputed evidence as to the complainant's complaint to his older sister.

189 In the course of his final address defence counsel dealt with the issue of delay in complaint at some length. He said that as a result of delay the complainant had been unable to recall details of the alleged offending and the accused had lost the chance to identify the occasions of the alleged offending with precision. He said that the accused had lost the chance to establish an alibi and that the accused had lost the chance to obtain forensic evidence, and more contemporaneous evidence as to the absence of pornographic material on the accused's computer.

190 The overall contention put to the jury on behalf of the accused in final address was that the complainant had fabricated his evidence and that he was unable or unwilling to give details of the offending because he was lying.

191 After final addresses, the issue of forensic disadvantage was revisited. Defence counsel adopted the arguments he had put to the jury in support of a submission that the judge should give the direction provided for by s 39.

I decline to make a direction in respect of significant forensic disadvantage for, in my assessment, there is no significant forensic disadvantage to the accused. True it is that the time to be considered is between the alleged offence and the trial, but an added complication in this case to my mind is the evidence of the complainant and his sister of complaint being made to the accused man when the complainant was 14.

The standard direction in respect to forensic disadvantage is predicated upon there being a delay in complaint being brought to the attention of the accused man, and to my mind that the evidence of complaint by [the complainant's sister] to the accused makes this issue a vexed one.

Ultimately it is my view that there is nothing by way of forensic disadvantage that is more than the mere existence of delay in this case.

193 In the submissions made in support of the proposed ground of appeal the relevant forensic disadvantages were said to be the following:

(1) Loss of the chance to adduce forensic evidence which might tend to throw doubt on the complainant's account, the complainant having testified that the applicant ejaculated under his shirt on four occasions, and on the complainant's back on one occasion, and that the complainant vomited on the applicant's penis and on the carpeted floor on one occasion.

(2) Loss of the chance to explore the circumstances of the alleged offending in detail.

(3) Loss of the chance to identify the occasions of the alleged offending with specificity.

(4) Inability to make any defence other than a simple denial.

(6) Inability to call evidence contradicting the broader evidence of the complainant.

194 It was submitted that the circumstances referred to 'individually or in combination' constituted a significant forensic disadvantage and that it was not open for his Honour to reach the contrary conclusion. It was submitted that his Honour had erred in stating that the defence complained of no more than the existence of delay. It was submitted that his Honour had proceeded on the erroneous basis that the evidence of complaint made to the complainant's sister meant that the applicant had been put 'on notice from that point'. It was submitted that the direction required by Division 2 of Part 5 of the Jury Directions Act, which had been given (amongst other things, that delay in complaint is a common occurrence) had exacerbated the error made by the judge in failing to give the s 39 direction.

195 We do not accept that the judge proceeded on the basis that the evidence of the complaint made to the complainant's sister meant the applicant had been put on notice from that point. That evidence was contentious. The applicant denied that it had occurred. The judge did not make a finding that it had occurred. What he said was that the existence of the evidence of that earlier complaint was a 'complication' which rendered the issue a 'vexed one'. The judge was correct about that. In fashioning a significant forensic disadvantage direction in this case the judge would have had to address the issue that, on the evidence of the complainant and his sister, a complaint was made to the applicant during the course of the offending conduct itself.

196 The basis upon which the judge declined to give the requested direction was that he was not satisfied that a significant forensic disadvantage existed. We are unpersuaded that he made an error in reaching that conclusion.

197 This is not a case where the delay in itself might lead to an inference that a significant forensic disadvantage had been suffered. This is not a case of historic sexual offending.

198 The submissions made concerning the loss of the chance to explore details and to establish a possible alibi were, to adopt expressions used in PT, in the 'realm of speculation' and 'nebulous'.[17] The potential for the existence of forensic disadvantages was there, and counsel addressed them in his closing address, but the accused did not identify and demonstrate particular risks which constitute a significant forensic disadvantage in this context.

199 Given that the applicant's case at trial was that the complainant was entirely fabricating his evidence, the way in which this aspect of the matter was initially put to the trial judge was misconceived. Suggesting that delay had affected the complainant's memory was inherently inconsistent with the proposition that his evidence was fabricated. In the course of oral submissions before us counsel for the applicant accepted that proposition and submitted that the true substance of the disadvantage was that the applicant had been deprived of an opportunity to expose the complainant's fabrications because the elapse of time meant his lack of detail was explicable. As the trial judge pointed out in the course of argument, the complainant did not rely on the lapse of time for his inability to give specific details but rather he relied upon the fact that the relevant incidents were part of a series of innumerable similar incidents and that sexual activity between he and the applicant 'became the norm'. The complainant in his evidence also said he had made a conscious attempt to suppress memories of the incidents.

200 In relation to what is said to have been a loss of opportunity to obtain forensic evidence we are also unpersuaded that the judge was in error in concluding that the applicant had not established a significant forensic disadvantage.

201 The presence of ejaculate on the applicant's shirt would have been equivocal even if that evidence had been obtained. The presence of his own ejaculate on his own clothing would not necessarily either confirm or undermine the complainant's evidence. The absence of ejaculate would be significant only if an immediate complaint had been made.

202 Similarly, the presence or absence of vomit on the carpet in the applicant's house would not necessarily confirm or undermine the complainant's account.

203 The presence of the applicant's ejaculate on the complainant's back or of vomit on the applicant's penis would have been significant, as would its absence, if testing were carried out immediately after the alleged offending. In that context the relevant 'delay' in complaint is a matter of hours or even minutes. This consideration amounts, in substance, to a forensic disadvantage said to be constituted by the failure to make an immediate complaint. It is a long way from the issue addressed in Longman. In our view a failure to make an immediate complaint, the relevant delay being measured in hours or minutes, is not a 'delay' of the kind addressed in s 39.

204 The cases where loss of an opportunity to obtain medical evidence or other scientific evidence have constituted a significant forensic disadvantage are different to this one. In Greensill medical evidence obtained closer to the alleged offending could well have revealed that the offences were physically impossible. In Pate there was evidence that a medical examination had been undertaken very soon after the offending but the delay meant that evidence had been lost. In Jurj forensic examination of the deserted factory where the 14 year old claimed she had been repeatedly raped by two virtual strangers could well have powerfully confirmed or undermined her evidence. We do not consider the circumstances here to be relevantly analogous.

205 If a s 39 direction were required here, it would be required in any case where there is a delay sufficient to preclude an immediate medical examination of the victim and the alleged offender or an immediate forensic investigation of the alleged place where the offending occurred. We do not accept that s 39 creates that position. If that were the position, that disadvantage would have arisen in PT, but there is no suggestion that that was the case.

206 What is said to have been the reduced impact of evidence as to the absence of pornographic material on the applicant's computer could not, in our view, constitute a significant forensic disadvantage. The evidence about the applicant's computer supported his case. It is not a significant forensic disadvantage that an earlier examination may have increased its cogency.

207 The submission made about the direction required by Division 2 of Part 5 exacerbating the miscarriage of justice caused by the absence of a significant forensic disadvantage direction under s 39 is not well founded. If the statutory requirements for the direction under Division 2 of Part 5 exist, the required direction must be given. If the statutory requirement which must exist before the direction under s 39 may be given is not found to exist, the direction cannot be given.

208 We will grant leave to appeal on proposed ground 4, but we reject this ground.

209 Leave to appeal against conviction is granted on proposed grounds 1, 2 and 4. The appeal against conviction is dismissed.

210 As mentioned above, the applicant was sentenced to a total effective sentence of nine years' imprisonment with a non-parole period of six years.[18] He was sentenced as follows:

Sexual penetration of a child under 16 in the care, supervision or authority of the offender [s 45 Crimes Act 1958 'CA']

Attempted sexual penetration of a child under 16 in the care, supervision or authority of the offender [s 321 CA]

Sexual penetration of a child under 16 in the care, supervision or authority of the offender

Attempted sexual penetration of a child under 16 in the care, supervision or authority of the offender

Sexual penetration of a child under 16 in the care, supervision or authority of the offender

Sexual penetration of a child under 16 in the care, supervision or authority of the offender

Sexual penetration of a child under 16 in the care, supervision or authority of the offender

Sexual penetration of a child under 16 in the care, supervision or authority of the offender

Sentenced as a serious sexual offender on charges 3, 7, 9, 10, 12 and 13. Directed to be subject to the Sex Offenders Registration Act 2004 for life.

211 There are two proposed grounds of appeal against sentence:

(1) The individual sentences, orders for cumulation and non-parole period are manifestly excessive in light of:

(a) the applicant's lack of prior or subsequent criminal offending;

(b) the applicant's inability to see his four children whilst he is in gaol; and

(c) the learned sentencing judge's finding that the hardship experienced by the applicant's family as a result of his incarceration constitutes exceptional circumstances.

(2) The learned sentencing judge erred in failing to impose proper and proportionate sentences individually on each charge, before considering questions of concurrency and cumulation and, ultimately, totality.

212 The judge noted that the applicant, aged 40 at the time of sentencing, was the eldest of five siblings, having been born in Lebanon. The applicant grew up in Tripoli and exhibited learning difficulties while at school and was diagnosed with Attention Deficit Disorder which was dealt with as a form of autism and untreated. He left secondary school at an early age and spent much time with his mother and father. His mother suffered from epilepsy and when she suffered from an epileptic fit the applicant would attend to her. He grew up during the time of war in Lebanon and experienced the terrors of war.

213 The applicant started work at the age of 15 as an apprentice barber and two years later opened his own barber's shop with a single chair. A few years later the applicant underwent compulsory military training for 12 months. He returned to his work as a barber and expanded his business to two chairs.

214 The applicant acceded to an arranged marriage with his first cousin, the daughter of his maternal aunt, who was living in Australia. His bride travelled to Lebanon for the wedding and thereafter the applicant travelled to Australia as her spouse. The applicant arrived in Australia in July 1999 and lived with his maternal aunt and his wife in Brunswick for three years or so.

215 The applicant and his wife have four children: a boy, 'John',[19] aged 15 at the time of sentencing, who suffers from autism although with high functioning capacity within that spectrum; a girl, then aged 12, who attends secondary school; and two younger children, a boy then aged ten and a girl then aged six, who both attend primary school.

216 In 2004 the applicant purchased an ice-cream van and started the ice-cream selling business in 2005. By 2009 the business had flourished and he bought a second van. Both vans generally operated in the Sandringham and Brighton areas. The applicant has worked hard all his life and in the quiet winter months he worked at rubbish removal and landscaping to fill the financial gap.

217 The judge described the applicant as being regarded as 'a good family man' who involved himself in the day to day activities of his family and took his children to mosque each Friday and enjoyed family outings with them. He also provided financial support for his parents in Lebanon.

218 The judge recognised that the applicant's time in prison had been difficult because he was not permitted to see his children. There was evidence, in Exhibit C, of the restrictions the applicant was placed under in prison. The judge said:

The prison authorities, because of the offences of which you have been convicted, had not permitted your children to visit you. You found this particularly hard, as did each of your children, especially your oldest child, [John], who is particularly attached to you. [John's] autism makes it difficult for him to come to grips with why you are not at home and additionally why he may not see you in prison. You sought to alleviate the difficulties that this policy position had on you by being in daily telephone contact with your family and speaking to each of your children every day. Of course, a natural consequence of these communications is that your children become upset when they finish their conversations with you.

I was informed that you had applied to the prison authorities for a relaxation of the restrictions that had been placed on you to receive visits from your children while you are in custody. On 25 August I received an affidavit of the same date sworn by Brendan Money, the Assistant Commissioner, Sentence Management Branch of Corrections, Department of Justice and Regulation (Exhibit C). Mr Money swears that your application to have your prisoner description or classification as restricted-access prisoner altered has been refused, and so you will continue to be denied visits from your children. You will continue to receive visits from your wife and have daily telephone contact with your family. I am satisfied that the inability to see your children and the knowledge of the difficulties that your family will face as a result of your imprisonment will make the experience of imprisonment more burdensome for you, and I take that matter into account when arriving at an appropriate sentence in your case.[20]

219 The judge described the applicant's wife as 'overwhelmed' by the situation, including both the effect the applicant's imprisonment has had on the children but also by financial hardship. It appeared that family members of the applicant's wife were able to provide assistance.

220 On the plea, character evidence was given by a former employee to whom the applicant had been generous and transcript from the trial was tendered with respect to several other witnesses who spoke of the applicant's reputation for honesty, decency and integrity. Other testimonials were also tendered.

221 The judge took into account a report from Dr Michael King, psychologist, who had conducted a number of tests on the applicant and assessed him as a man functioning in the low range of intellectual ability. He confirmed that the bond between the applicant and John was a particularly strong one.

222 Dr King also expressed the view that '[t]here are no indications of propensity for wrongdoing on the part of [the applicant]'. The judge queried the opinion of Dr King with respect to the applicant's risk of reoffending because it 'sits at odds with the frequency and length of time over which you offended against the complainant'.[21] The judge described the applicant's prospects of rehabilitation as 'guarded in all the circumstances'.[22]

223 The judge accepted the submission that the applicant's circumstances of hardship were 'exceptional' based upon the evidence in Exhibit C together with the applicant's family circumstances. Proposed ground 1 of the grounds of appeal challenge, in effect, how this finding is compatible with the sentence ultimately imposed. The judge said:

[Counsel for the applicant] submitted ... that I should find exceptional circumstances exist in respect of the hardship that will be caused to your family by the sentence of imprisonment which I must impose on you. To my mind, those matters, considered individually and in combination, could not be described as exceptional. They represent the natural consequences that follow from the imprisonment of a husband, father, and breadwinner of a family. Your wife has the support of her large extended family, and, whilst presently she is overwhelmed by her circumstances, she demonstrated, as a witness on the trial and on the plea, that she is a highly intelligent and capable person, and one who with the support of her family will make every effort to maintain her own family. The receipt of Exhibit C into evidence and the effect of any sentence effectively stopping your children from seeing you for the foreseeable future until they each attain the age of 16 years, tips the balance, and to my mind its contents when combined with other factors make out exceptional circumstances in your case.[23]

224 The judge treated the offending as grave, involving as it did a profound breach of trust, and demanded denunciation and general deterrence. He noted that the applicant was to be sentenced as a serious sexual offender with respect to charges 3, 7, 9, 10, 12, and 13 which requires the protection of the community to be the principal purpose of sentencing for those charges. As the applicant contested the charges, the judge was unable to find any remorse. He concluded:

Your offending was grave. You preyed upon an adolescent who was a member of your extended family. You did so in circumstances where you were liked and trusted by your victim as well as his family. I accept the evidence of the complainant's sister who swore at trial that after the complainant confided in her concerning your offending, that she confronted you about your conduct. I also accept the evidence of the complainant that after the confrontation, your offending continued. Your breach of trust was profound. The application of the principles of general deterrence, public denunciation and just punishment must play the dominant role in arriving at an appropriate sentence in your case.

As you will be sentenced to a term of imprisonment in respect of each charge on which you were convicted, you fall to be sentenced as a serious sexual offender in respect of Charges 3, 7, 9, 10, 12 and 13, and protection of the community becomes the principal purpose for which sentences are imposed in respect of those charges.

...

You pleaded not guilty, and accordingly I am unable to find any remorse in you for your offending conduct. ...

By this sentence I must punish you, publicly denounce your conduct, and deter you and others from committing these kinds of crimes. [I sentence you] [t]aking into account the circumstances of the offences and their effects, your personal circumstances and antecedents, and endeavouring to produce a sentence which reflects and promotes the purposes of sentencing ....[24]

225 The applicant does not seek to question the seriousness of the offending of which he was convicted and accepts that general deterrence and the protection of the community are important sentencing considerations, especially given that the he fell to be sentenced as a serious sex offender in respect of six of the charges.

226 The applicant also accepts that the sentences imposed would be within range were it not for the significant factors in mitigation. Of these, the applicant emphasises the inability to see his four children, especially his son John, and the judge's finding that the applicant's knowledge of the hardship experienced by his family, in context, rendered the applicant's circumstances exceptional.

227 The applicant emphasises the difficulty of his childhood in war-torn Lebanon, suffering from Attention Deficit Disorder and the need to attend to his epileptic mother. He also emphasises the low range of his intellectual functioning, his excellent work history, his good character, as well as the delay between the trial (which, as mentioned above, was disrupted by the discharge of two juries) and the sentence being imposed (a period of three months) and the more general delay between the complaint having been made and the day of sentence, a period of three years in which the matter hung over the applicant's head. The applicant also identifies three factors which support his prospects of rehabilitation, namely, his strong family support, his excellent work history and his lack of prior or subsequent criminal offending.

228 The applicant submits that the length of sentence imposed in two similar cases where there has been an absence of a finding of exceptional circumstances demonstrates that the sentence imposed on him is manifestly excessive. The cases he relies on are Ashley v The Queen[25] and SS v The Queen.[26]

229 In Ashley the offender was convicted by a jury of nine charges of sexual penetration of a child under 16 in the care, supervision or authority of the offender. The victim was the daughter of the offender's partner. The offender penetrated the vagina of the 13-year old victim with his finger on seven occasions, with his tongue on one occasion, and with his penis on one occasion over seven separate incidents. This Court held that the total effective sentence of nine years' imprisonment with a non-parole period of six years was not manifestly excessive.

230 In SS the offender was convicted by a jury of two charges of sexual penetration of a child under 16, in the care, supervision or authority of the offender, and seven charges of indecent assault. The acts of sexual penetration involved the offender having his 10-11 year old male gymnastics student perform oral sex on him; he was sentenced to three years' imprisonment on each of the two charges. The total effective sentence for all nine charges was five years and five months' imprisonment with a non-parole period of three years and six months. This Court held the sentence imposed was not manifestly excessive.

231 Most importantly, the applicant relies on the finding of exceptional circumstances that the judge made. He emphasises that the policy of Corrections Victoria means that, up until each child reaches the age of 16, he or she will not be permitted to visit him in gaol and nor is the applicant permitted to see photographs of his children. As presently sentenced, the applicant will not see John between the ages of 15 and 16, his eldest daughter between the ages of 12 and 16, his younger son between the ages of 10 and 16 and his youngest daughter between the ages of six and 12, if the applicant is released on parole after six years, or between the ages of six and 15, if the applicant is not released on parole. These matters, together with the applicant's knowledge of his family circumstances of hardship, make the applicant's imprisonment more burdensome for him. In addition, prison is submitted to be more burdensome because the applicant is serving his sentence in protective custody. These matters, together with the recognition of the significant role that the principle of totality must play, the requirement for 'an evaluation of the overall criminality involved in all the offences with which the prisoner is charged',[27] should have led, the applicant submits, to a lesser sentence.

232 In response, the Crown emphasises that the ground of manifest excess imposes a highly demanding standard which is difficult to meet. As Maxwell ACJ observed in Kumar v The Queen:[28]

[T]he ground of manifest excess is very difficult to establish. It involves demonstrating to the satisfaction of this Court that it was not reasonably open to the sentencing judge, taking all relevant matters into account, to impose the sentence in question on the particular offender for the particular offending. That is a stringent test, founded on the basic principle that sentencing is for judges and magistrates at first instance and not for the Court of Appeal. We intervene only where something is shown to have gone clearly or badly wrong.[29]

233 The Crown also emphasises that the objective gravity of the offending called for a significant term of imprisonment; there was no plea of guilty, no remorse or insight, and, as acknowledged, under the Sentencing Act 1991 he stood to be sentenced as a serious sex offender on six of the charges in respect of which the primary purpose of the sentencing had to be the protection of the community. The Crown submits that no linkage was established between the applicant's difficult upbringing and his offending, nor between his low intellectual ability and the offending. The applicant's work history and good character were taken into account by the judge as important factors and, the Crown submits, as the judge presided over the proceeding from the first trial until the sentencing, he well appreciated the burden of delay on the applicant.

234 Furthermore, the Crown submits that, by characterising the applicant's circumstances as exceptional, the judge gave appropriate weight to the applicant's circumstances including by recognising the more burdensome nature of imprisonment compared to that experienced by another offender. It also submits that although the applicant is in protective custody he is able to access programs and services and his conditions are substantially the same as those in which mainstream prisoners are held.

235 In our view, the proposed ground of manifest excess is not made out.

236 The restriction on the applicant from seeing John, with whom he has a particularly strong bond, and who suffers from autism and is understandably perplexed by his inability to be with his father, is of limited duration. Indeed, given that John was 15 at the time of sentencing, and the sentence was imposed on 26 August 2016, it may be that John is now able to meet with his father. So too, on the current policy, the applicant would not be restricted from seeing his eldest daughter in about three years' time. That is, the policy of Corrections Victoria will only operate in the short to mid-term term in respect of the two eldest children. The burden the applicant will suffer in respect of being prevented from seeing those children will be similarly moderated.

237 The burden experienced by the applicant as a result of being deprived of meeting with the two youngest children for a number of years, while he is in prison, is, no doubt, a source of concern and anxiety for him but this very issue served to 'tip the balance' for the judge to treat the applicant's circumstances as 'exceptional'. However, it is clear from the judge's reasons that, despite the very considerable weight given to the impact of the restrictions Corrections Victoria has imposed on the applicant, the other factors that were relevant for the judge to take into account had to be balanced against any leniency supported by the exceptional circumstances. We do not see the finding of exceptional circumstances as incompatible with the sentence ultimately imposed. This is because the other relevant factors were of such magnitude that they required that proper weight be given to them. This is especially so in respect of the gravity of the offending, its duration, and the profound breach of trust involved not only to the complainant, but also to the extended family. Moreover, it is clear that the judge took a cautious view of the risk of the applicant reoffending, given the frequency with which the offences against the complainant occurred and the long period of time over which the offences occurred.

238 Little can be gained from an examination of the two cases the applicant relies upon. It is well accepted that consistency of sentencing, as explained in Hili v The Queen[30] refers to consistency in the application of relevant legal principles rather than numerical equivalence. In any event, both Ashley and SS are relevantly different. As noted, the offender in Ashley received the same sentence as the applicant (nine years' imprisonment with a non-parole period of six years) in the absence of any finding that his circumstances were exceptional. However, the offender was aged 68 at the time of sentence, much older than the applicant, and the offending took place over a shorter period of time. Importantly, the sentencing judge placed little weight upon specific deterrence.[31] In SS the offending took place only on two separate occasions in 2001, by comparison with the applicant who offended over a greater period of time and on a greater number of occasions.

239 We consider proposed ground 1 to be without merit and we refuse leave to appeal. We do not uphold the ground.

Proposed ground 2 - failure to sentence on individual charges

240 The applicant submits, correctly, that in sentencing for multiple offences it is erroneous for a judge to commence with a total effective sentence in mind and then 'work backwards' to allocate sentences to each individual charge. The applicant refers to the correct approach for sentencing an offender on multiple charges as described in Pearce v The Queen:[32]

To an offender, the only relevant question may be 'how long', and that may suggest that a sentencing judge or appellate court should have regard only to the total effective sentence that is to be or has been imposed on the offender. Such an approach is likely to mask error. A judge sentencing an offender for more than one offence must fix an appropriate sentence for each offence and then consider questions of cumulation or concurrence, as well, of course, as questions of totality.

Sentencing is not a process that leads to a single correct answer arrived at by some process admitting of mathematical precision. It is, then, all the more important that proper principle be applied throughout the process.

Questions of cumulation and concurrence may well be affected by particular statutory rules. If, in fixing the appropriate sentence for each offence, proper principle is not applied, orders made for cumulation or concurrence will be made on an imperfect foundation.

Further, the need to ensure proper sentencing on each count is reinforced when it is recalled that a failure to do so may give rise to artificial claims of disparity between co-offenders or otherwise distort general sentencing practices in relation to particular offences.[33]

241 The applicant submits that here the judge did not approach the sentencing task as he should as a matter of principle; 'that is, as a starting point, imposing proper and proportionate sentences individually on each charge, before turning to concurrency and cumulation and, ultimately, totality'.[34] He submits that the sentences imposed on the applicant invert the sentencing process, commencing with a total effective sentence in mind and then imposing arbitrary individual sentences and orders for cumulation so as to achieve that result. This is argued to be apparent from the imposition of the same sentence (four years' imprisonment) in respect of each of the six substantive offences (charge 1 (the first incident), charge 3 (the first tent incident), charge 9 (the Asian festival incident), charge 10 (the Salvation Army incident), charge 12 (the rice pudding incident) and charge 13 (same night as the rice pudding incident)) and the same sentence (three years' imprisonment) in respect of each of the two attempts (charge 2 (the first incident) and charge 7 (the first bedroom incident)) despite critical differences between the charges:

(1) Charge 3 involved penile-anal penetration, whereas the other substantive charges related to penile-oral penetration;

(2) The offending the subject of charge 3 caused the complainant pain, and the offending the subject of charge 12 caused the complainant to gag and vomit, whereas there is no evidence of pain or physical malaise in relation to the other charges; and

(3) The applicant was to be sentenced as a serious sexual offender on charges 3, 7, 9, 10, 12 and 13, but not on charges 1 and 2.

242 Furthermore, the applicant submits the judge ordered the same degree of cumulation, 10 months, in respect of each of the substantive offences, and the same degree of cumulation, five months, in respect of each of the inchoate offences, despite the fact that charge 1 and charge 2 occurred on the same occasion, and charge 12 and charge 13 occurred on the same day, whilst the other charges were single incidents.

243 The Crown submits that the difference in the form of the penetration is not a critical difference; there is not a diminution of seriousness for different types of penetration. Nor is the presence or absence of physical pain determinative of the gravity of an offence. Moreover, although the applicant stood to be sentenced as a serious sex offender on charges 3, 7, 9, 10, 12 and 13 the Crown did not seek a disproportionate sentence on those charges and the judge was thus not required to impose a heavier sentence on those charges than on charge 1 and charge 2.

244 It is clear, in our view, that the judge distinguished in his sentencing between the substantive offences and the attempts. Moreover, we accept that one cannot inevitably infer a critical distinction in the gravity of the offending by reason of the type of penetration; that is, one mode of penetration is not necessarily more serious than another. Nor is it easy or correct to grade the measure of criminal culpability of the offending by reference to the pain or malaise it caused. It also cannot be concluded that the applicant suffered no pain by the offences other than that specifically relating to the first tent incident and the rice pudding incident. Furthermore, the offences here were substantially similar; while the location and circumstances changed, the offending conduct itself was repetitive.

245 We reject the proposition that the judge inverted the correct approach to sentencing for multiple offences. We will grant leave to appeal on proposed ground 2 but we do not uphold the ground.

246 Leave to appeal against sentence is refused on proposed ground 1 and granted on proposed ground 2. The appeal against sentence is dismissed.

[1] To ensure that there is no possibility of identification, this judgment has been anonymised by the adoption of a pseudonym in place of the name of the applicant.

[2] At that point the complainant apparently paused because counsel asked if he was alright and the trial judge asked if he needed to take a break.

[3] [2011] HCA 13; (2011) 243 CLR 400, 405-6 [11]-[14].

[4] [1989] HCA 60; (1989) 168 CLR 79 ('Longman').

[6] See generally Greensill v The Queen [2012] VSCA 306; (2012) 37 VR 257, 266 [41] ('Greensill') for a discussion on the similarities and differences between s 165B of the Evidence Act and s 61 of the Crimes Act.

[7] [2011] VSCA 43 ('PT').

[8] Ibid [24]-[25], [27] (citations omitted).

[11] [2016] VSCA 57 ('Jurj').

[12] (2015) 250 A Crim R 425 ('Pate').

[13] See Victorian Department of Justice and Regulation, Jury Directions: A Jury-Centric Approach (2015), 67 [10.4.2].

[14] [2017] VSCA 94.

[16] It is difficult to see how the asserted forensic disadvantage in that case fell within the definition of s 38 in any event as the disadvantage asserted does not seem to have been the consequence of a delay, but rather as a consequence of a change in the evidence.

[17] PT [2011] VSCA 43 [25], [40].

[18] DPP v [Robbins] (Unreported, County Court of Victoria, Judge Ryan, 26 August 2016) ('Sentencing reasons').

[24] Ibid [32]-[33], [35]-[36].

[25] [2016] VSCA 246 ('Ashley').

[26] [2013] VSCA 68 ('SS').

[27] Postiglione v The Queen [1997] HCA 26; (1986) 189 CLR 295, 308 (McHugh J).

[28] [2013] VSCA 191.

[30] [2010] HCA 45; (2010) 242 CLR 520, 535-6 [48]-[49].

[31] Ashley [2016] VSCA 246 [109].

[32] [1998] HCA 57; (1998) 194 CLR 610.

[33] Ibid 623-4 [45]-[48] (citations omitted).

[34] Bauer (a Pseudonym) v The Queen (2015) 46 VR 382, 424 [194].