SKA v R; R v SKA

[2009] NSWCCA 186

Court of Criminal Appeal (NSW)|2010-07-30|Before: James J, Simpson J, Clellan CJ

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At a glance

Source facts

Court

Court of Criminal Appeal (NSW)

Decision date

2010-07-30

Before

James J, Simpson J, Clellan CJ

Source

Original judgment source is linked above.

Judgment (94 paragraphs)

[1]

Background 5 The appellant is the uncle by marriage of the complainant. The complainant's father is the brother of the appellant's wife. The complainant was born in April 1996. She has two older sisters, one of whom, L, is three years older than she is. The appellant has two daughters, Sh and Sa. Sh is three years younger than the complainant (born in 1999). Sa is 10 years younger than the complainant (born in 2006). 6 Both families originated in India. In May 2000, in complicated circumstances it is not necessary to recount, the appellant and his wife (BA) and daughter Sh migrated to Australia. In July 2000 the complainant with her family (her parents and two sisters) also migrated to Australia. Initially, for a short period, they were given accommodation by the appellant and his family in their home. They then took rented accommodation in a suburb of western Sydney. The two families were close (although just how close was a matter of some difference of opinion). The complainant gave evidence that she and her cousin Sh were particularly close. This was not disputed. There were many occasions on which the complainant slept at the appellant's home, sharing a bedroom (and double bed) with her cousin Sh and her sister L. The frequency with which this happened was also a matter of some disagreement. A matter of significant dispute is the date on which the overnight stays began. 7 Other siblings have also migrated to Australia. 8 The above represents as much as can be said that is uncontroversial. I will return to outline the Crown case, and the defence case.

[2]

[11]

The complainant's evidence 23 Pursuant to s 306S of the Criminal Procedure Act 1986, the evidence in chief of the complainant was given in the first instance by way of a video recorded interview with a police officer, Detective Senior Constable Bagnall, which was played to the jury. The interview took place on 10 April 2007. The complainant was then 10 days short of her 11th birthday. 24 The video was played to the jury, following which the complainant gave oral evidence. She was cross-examined by senior counsel for the appellant. 25 It is appropriate here to comment on one feature of the manner in which the complainant gave her account to Detective Bagnall. It was quite common, throughout the interview, for her to use what might be described as a continuous tense - best described by illustration. In relation to the 2006 charges she was asked what happened after the appellant got into the bed. She answered: "He just come behind me and then he just put, like his hand, on my, my, on this. Then, yeah, he'd just do that. And then I'd kind of just shift over and move and try and get a bit away …" 26 Later, still being asked about the 2006 events, she was asked where the appellant was when she said she needed to get a drink. She answered: "He was, he'd kind of like follow a, a bit. Like, he would go, OK. And then I'd, I'd go. And then, a bit later, about 2 minutes later, he'd just get out of the bed, and he would go and he'd kind of walk near the place I said I'd be in then." 27 Finally (although there were many more examples), she was asked if anybody else was in the bed. She answered: "Just me, [Sh] and then he would come again. But that was for the, he came again and that was for the second time. And he'd just do the same thing. And like kind of touch around here and then he'd just, and then he would go a little while later." 28 This speech mannerism can best be explained by an early answer given by her (in a passage that was excised from that which went to the jury). In an answer unresponsive to the question, the complainant said: "Actually it's like, it's been continuous from, about 6 years now." 29 Later, in another passage that was also excised from the recording which went to the jury, she said: "And I got sick of it and I'd just go and I'd just come back a bit later and he might be there and he might not, he just does that all the time ." (italics added)

[17]

When asked to be more specific, she said that it was the day before Christmas Eve. 37 Also in relation to those charges she said that she thought that, prior to the events, she and Sh had watched, on a computer, a DVD of "The Incredibles". 38 I will return to this. 39 It is clear from reading the whole of the transcript of the interview that the complainant asserted that all incidents took place in the same house, the house of the appellant and his family. That is a matter of some significance. 40 The above represents a synopsis of the answers given by the complainant to Detective Bagnall in the recorded interviews. Her evidence in chief, given via the video, was supplemented by oral evidence, both in chief and in cross-examination. 41 Perhaps the most significant aspect of her oral evidence, given in chief, concerned the timing of the events the subject of the 2001 allegations. In the interview, she said that they occurred when she was four, and she thought it was "around January, at the end of the holidays". (Plainly, that would be January 2001.) 42 When asked why she thought it was then, she replied: "Because I know that like during kindergarten, I'd think about it, like very (sic) day." 43 In her oral evidence, she said that she thought that was a mistake, that she was confident that it occurred in "the holidays sometime", and it may even have been as late as September of that year. 44 Also in chief, she gave some further answers to which it will be necessary later to make reference. She was asked how she felt about what was happening (the question clearly related to her kindergarten year). She answered: "I guess sort of confused because I didn't really sort of understand what was happening. I sort of felt like it happened to everyone, like it wasn't anything huge so I just didn't really get it." 45 When asked why she did not tell anybody, she answered: "Because I guess I was afraid of what other people might think if I said anything." 46 She was then asked in relation to the 2004 allegations, how she felt about those offences. She answered: "I think I was on the verge of sort of understanding what was going on but I think for the same reason I was still a bit afraid about telling people and what they might think and what might happen between us two families." 47 She was asked why she did not say anything to the appellant and answered: "I don't know. I didn't know how I felt about it. I was sort of really uncomfortable and that wasn't really what my mind was on, saying anything about anything." 48 The complainant was then cross-examined. She was asked why she wanted to return to the appellant's home after these events had occurred. She said: "It was very painful to go through that and sometimes I tried so hard to put it out of my mind, sometimes I believed it didn't happen. But then sometimes I'd always have the hope maybe it might not happen and maybe I might just be able to spend a little bit of time with my cousins. But then it happened again and I was really sure it was like happening." 49 The complainant was cross-examined about her revision of the timing of the 2001 allegation. It was suggested to her, somewhat obliquely, that she had revised the date because she had realised that the appellant and his family had not purchased and lived in the house where the events were said to have happened until April 2001. She accepted that that might have been "part of the reason" because it prompted her to think a little more about it. 50 However, it was also put to her that by September 2001 she was five, not four, years old. 51 She was then asked: "Are you saying you weren't really sure that it was happening?"

[32]

Q. On a computer? A. Maybe on a computer but I do remember watching a movie that night and I do remember once watching The Incredibles in their house on that bed, in that room, on a computer." 56 Senior counsel then turned to that part of the interview video in which the complainant had said that the events of the kind she described happened "every one or two nights". He asked what she meant by that. She replied: "Well I think what I meant to say was they had a sleepover every one or two months maybe say probably about one month every month but every time I slept over it happened." 57 In answer to a question from the trial judge she said that, in the interview, she must have meant to say "months" instead of "nights". She said that she slept over once every one or two months. 58 Another topic of cross-examination was the complainant's evidence that, during the 2004 incident, she made an excuse to get out of the bed by saying that she needed to go to the toilet, and was accompanied by L. 59 She was asked how both fitted into the toilet. It was suggested to her that the toilet was "only a little room" (other evidence established that the toilet was a room separate from the bathroom). 60 The complainant answered by saying that, when she said they went to the toilet, she had, in fact not gone to the toilet but into the bathroom next to it. Senior counsel then asked her: "But you were happy to leave it as going to the toilet until I just raised that then?" 61 She replied that she (in effect) used the terms "toilet" and "bathroom" interchangeably. 62 When the whole of the complainant's evidence in relation to these allegations is taken into account, the question was, in my opinion, (inadvertently) unfair. 63 In the interview the complainant said that she had told the appellant that she needed to go to the bathroom (Q391), or that she would go to the toilet (Q508), and that L said she would go too. In the answer to Q523 she said that after she left, L got out of bed and followed her, and the appellant followed them both: "And he went and he knocked on the door … and we got out of the bathroom and we went back to the bed."

[36]

The evidence of the complainant's father (BR) 68 The same issue, concerning the time at which the children began sleeping overnight at the appellant's house, was raised with the complainant's father. He was less specific than his wife had been. He recalled the renovation to the appellant's house, but thought there would have been sleepovers during that time (contrary to the proposition that was put to him in cross-examination), although he could not recall dates. 69 That was the prosecution evidence concerning the events the subject of the charges. The Crown also tendered as evidence an alibi notice, given under s 105 of the Criminal Procedure Act 1986, by the appellant's solicitors to the Crown. It is undated. 70 The notice was directed to the complainant's assertion that the 2006 events had occurred "the day before Christmas Eve" (although, it will be recalled, the complainant was not dogmatic as to the date). The notice purported to give a detailed account of the appellant's movements on that day (which was a Saturday). It asserted that, at about 1.30 to 1.40pm the appellant, with this wife and children, travelled to Narellan Vale, where they visited friends, Mr Raymond and Ms Sashi Krishna. They remained at the Krishna home until about 4.45pm, when they left and returned to their own home. They changed clothes, attended evening Mass, and again returned home where they remained until about 8.30 or 8.45pm. At that time, with their children, the appellant and his wife travelled to a nearby suburb, to the home of Mr Sylvester Jacob. They remained there until 10.30 or 11.00pm. Also present was a brother of the appellant wife's and the complainant's father, with his family. Between 10.30 and 11.00pm, the appellant and his family returned home, and remained there until the following day. 71 In response to this notice, which was not relied upon in the trial by the appellant, the Crown called as a witness Ms Sashi Krishna. She said that, although she had initially believed that the appellant and his family had visited her on 23 December, she later realised that was not so, and that the visit had taken place a week later, on 30 December. On 23 December she and her husband had driven to Queensland.

[38]

The appellant's evidence 73 The appellant denied ever having improperly interfered with the complainant or ever having been in a bed with her. 74 In the course of examination in chief he produced a letter from solicitors. This established that he purchased the house in which the complainant claimed all offences had been committed on 20 April 2001 - thus conclusively showing that the first incident (if it occurred) could not have taken place in January 2001, as initially asserted by the complainant. 75 He gave evidence that, late in 2002, his wife's mother (also the mother of the complainant's father) visited the family for a holiday. He said that during this time a dispute occurred between his wife and the complainant's mother, and that this detrimentally affected the relationship between the two families, to the extent that they ceased the level of socialising that had previously taken place. He did not believe that, prior to that argument, the complainant or L had ever stayed overnight at his home. 76 The appellant also identified a Crown exhibit (Ex C3), a plan of his house, as one showing proposed additions to the house, that he said were carried out in 2003. He thought that, because of the disruption caused by the renovation, the complainant and L did not stay overnight during that time. 77 He said that, in December 2003, the complainant's mother and her children travelled to India. While they were away, the complainant's father ate meals with the appellant's family. On the return of the complainant's mother and her children, the rift between the families healed, and the formerly close and friendly relationship resumed. 78 That occurred in the beginning of 2004, coinciding with Sh commencing school. She attended the same school as the complainant. The two girls became very close. It was then that the practice of children staying overnight in one another's homes began. The appellant believed that the first time the complainant and L stayed overnight in his home was April 2004. 79 He said that he did not own a computer in 2004. He first had a computer in mid to late 2005. Sh used it to watch movies. 80 The appellant then gave some evidence about the circumstances in his household during 2004-5. He said that he and his wife were encountering difficulties conceiving a second child, and that his wife embarked on an IVF program. As a result, and because of the stress so occasioned, although he was uncertain, he thought it highly unlikely that the complainant slept at his home during that time. 81 He said that he and his wife did successfully conceive, and Sa was born (on his wife's evidence, this was 21 April 2006). There were difficulties with settling the child, and she and her mother spent some time at a medical facility. 82 The point of all this evidence appears to have been to limit the extent of the interaction between the families, and cast doubt upon the complainant's evidence as to the frequency with which she stayed at the appellant's home. 83 The appellant then gave evidence about his activities on 23 December 2006. He said that the daughter of neighbours, who was close to Sh, spent some time with Sh at his home in the morning. The complainant was not present. At 6.00pm, the family went to Mass, as was their practice. He did not recall seeing the complainant at Mass, although it was also her family's usual practice to attend. 84 The appellant and his family then returned home, and remained at home until about 8.45pm, when they took food to the home of his uncle, Sylvester Jacob, who was returning from India that evening. His brother-in-law (brother of his wife and of the complainant's father) was also present with his family. They remained at Mr Jacob's home until 10.30 or 11.00pm, then returned home. 85 The following day, 24 December, they spent some time in the morning shopping, and had dinner at the complainant's home with her family and others. 86 The appellant also produced (Ex A7) a letter from Walt Disney Studios, confirming that the DVD of "The Incredibles" was released in Australia on 6 April 2005. In cross-examination he stated, with more certainty than in his evidence in chief, that the complainant had never stayed at his home before 2004. He claimed that she stayed only six to eight times in total during the period 2004 to 2006.

[43]

How should this Court deal with evidence given by video? 100 As I have mentioned above, the complainant's evidence in chief was given by playing to the jury the videotape of her interview with Detective Bagnall. 101 The trial commenced on 12 August 2008. At that time, the legislation authorising the procedure adopted was the Evidence (Children) Act 1997. (That Act has now been repealed, and its provisions substantially re-enacted in Pt 6 of the Criminal Procedure Act. It is not necessary here to identify any variations between the two Acts. It is sufficient to note that what follows, although applicable to the repealed Act, may have application (with any necessary variations) to trials conducted under the replacement legislation.) 102 The issue which I am about to consider was not the subject of any ground of appeal nor any specific argument on appeal. It concerns the manner in which this Court ought to inform itself, for the purposes of applying the M test. In short, the question that arises is: ought this Court itself view the video of the complainant's interview, or ought it rely on the transcript of that evidence? 103 At the outset of the hearing of the appeal Senior Counsel for the appellant was invited to comment on this question. He declined to submit that the Court ought to view the video, but added: "Unless, of course, your Honours feel that you need to view the video to see the demeanour of the young girl during the course of the interview." 104 On reflection, however, I have come to the tentative view that the question is one of considerable substance and ought be resolved in favour of the appellate court proceeding on the basis of the transcript of the evidence alone. The view is tentative because, as I have said, the question was not the subject of argument. 105 In R v NZ [2005] NSWCCA 278; (2005) 63 NSWLR 628 a related question arose concerning access a jury might have to videotaped evidence of the same kind. All members of the Court (Spigelman CJ, Wood CJ at CL, Hunt AJA, Howie and Johnson JJ) agreed that videotaped evidence ought not be, as a matter of course, sent to the jury room after the jury retires to consider its verdict. The majority considered that, in the circumstances of that case, the fact that the jury had had access in the jury room to the tape did not give rise to a miscarriage of justice. Spigelman CJ disagreed in the result. In the course of his judgment his Honour said: "10 The authorities give particular emphasis to the possibility that the playing of the evidence in chief in videotape form carries with it the risk that the evidence will be given disproportionate weight. Two matters are emphasised. First, repetition, in a context where other balancing evidence is not or may not be repeated at all or as often. Secondly, the force attending evidence in an audio-visual form when compared with the force of evidence that may only be available in documentary or transcript form …

[44]

11 The principle of a fair trial requires the Court to adapt its procedures and/or to give directions to the jury wherever the circumstances of a particular trial give rise to a material risk that the jury may give disproportionate weight to particular evidence. This is a principle of general application of which the use of videotaped evidence under special statutory provisions for the giving of such evidence is one set of circumstances in which the issue has arisen." 106 In my opinion, while the first matter referred to in [10] (repetition) is not here material, the second (the impact of evidence in audio-visual form compared with the impact of evidence in documentary or transcript form) is equally applicable to an appellate court considering an unreasonable verdict ground of appeal. Appellate judges are not immune from the subtle (or not so subtle) influence of evidence given in videotaped form. 107 This is really no more than a recognition of the long established recognition (repeated in M, in the passages quoted) that observation of witnesses can affect the impact of the evidence given. 108 Indeed, in relation to appeals, the risk is greater than the risk identified in NZ. In a trial, a jury has at least had the advantage of seeing and hearing all witnesses give their evidence. The vice identified in NZ was the capacity of a jury to repeat and review the videotaped evidence in that form, while having access only to the evidence of other witnesses through documentary or transcript form. In an appeal, the appellate court is confined to the impact of the evidence as recorded on the page. It would create an imbalance for the appellate court to be exposed to the visual image and oral recording of one witness and not others. I add that the impact will not necessarily favour one party or another. A complainant may present as forceful, truthful and convincing. Where that is so, it would be unfair for the appellate court to take that into account where the accused person has not had the same opportunity to be perceived other than via words on the page. Alternatively, a complainant may present on video as prevaricating, evasive or uncertain. Again, it would be unfair (this time to the prosecution) to allow that impression to influence the result where defence witnesses (and this is particularly so where the accused person gives evidence) are only perceived from the transcript. 109 The task that has to be undertaken, in accordance with M (and other authorities), requires an evenly balanced approach. It seems to me that that evenly balanced approach cannot be achieved where the evidence of one witness (or more than one witness) is given in a manner that is apt to have a disproportionate impact. 110 Accordingly, although I had, prior to the hearing of the appeal, viewed a small portion of the complainant's interview, I decided against pursuing that course. I have reached my assessment on the basis of the transcript of the interview, and the transcript of the oral evidence. Were the verdicts unreasonable? 111 The approach taken on behalf of the appellant was, essentially, to attack the reliability of the complainant. In that regard, a number of points were made. They were:

[58]

(i) It is true that the complainant's answers to Detective Bagnall were characterised by the speech patterns I have mentioned. But it is also true that Detective Bagnall was fully aware of the need for the complainant to be specific as to the individual events the subject of the charges. She pressed the complainant to focus on those events. Thus, in relation to the 2004 allegations, the complainant said, for example: "… and night time he would do the same as always. And I would probably do the same, like he'd start touching me around the vagina and doing those things and I would just make excuses, Oh, I need to go to the bathroom, things like that … And my sister was there on that night, [L]. And [L], I, every, every time she made an excuse, Oh, like when I said, Oh, I need to go to the bathroom, she, she was, like she wanted to come with me, so she said, I need to go to the bathroom too. And when I went everything was fine. And then when my sister went, he would start following her, as well. And he would stand outside the bathroom." 114 These answers, alone, would be unsatisfactory to prove a specific incident on a specific occasion. But, later, the complainant said: "And yeah, so then [L] would wake up, she would move. And then [L] waking up made me wake up, so then I thought, and then I realised he was there and that, so, the same, the same routine, the same thing … He touched me in the vagina again. Yeah. And I woke [Sh] up and I said [Sh], do you wanna do something, do you want to play something, cause I didn't wanna, like I didn't wanna stay there … And she, and [Sh] said, OK. So we played a clap game and he was just, oh, you know, OK. So we got out and I was like, Oh, thank you [Sh]. And then, and then when he came back again, like [Sh] decided to doze off again cause she was really, really tired. And so then I went to sleep. And he came back again and then he started touching me around the breast area, the same ." (italics added) 115 There is in these last answers no vagueness or uncertainty, or running together of a pattern of behaviour. Those answers give a clear and explicit account of a specific incident. 116 In relation to the 2006 allegations, the complainant said: "Like, we were there and we were watching Charlie and the Chocolate Factory. And my big sister, not my biggest, like [L], she was there with us. We were all there and she, then [L] fell asleep and [Sh] was there, in front of me. And then she fell asleep. So then I fell asleep. And then he came to tuck us in, and I don't know what he was doing, but he just, he got into the bed and I was like, he got behind me and then he just, like touched me down here … And then I started getting a bit uncomfortable, and I said, oh, I need to go get a drink, or whatever. And so he said, OK, are you sure you don't need me to come? And I said, No, no, no, I don't need anybody. And I just got out of the bed and I went and like I pretended to go get a drink, yeah, and just went and I sat in the laundry room, by the door and I sat there for quite a, like a long time. And then he came and he said, Oh, are you OK? And I said, Oh, yeah, I'm fine. And I just got up and I went back to the bed. And like I was just with my cousin and my sister …" (italics added) 117 These answers, in my opinion, were sufficient to enable the jury to conclude (if they accepted the complainant's evidence) that the specific incidents the subject of the charges had occurred. 118 (ii) The first point made in relation to the date of the initial event concerned the date of purchase of the appellant's home. But the complainant herself took much of the sting out of that attack when, in cross-examination, she said, in effect, that she had reconstructed her evidence as to timing, and had reached a different conclusion. Somewhat disarmingly (for the cross-examiner) she agreed (twice) that the realisation that the appellant had not owned the house at the date she originally stipulated may have been part of the reason for her revision. 119 (iii) I see little force in the criticism of the complainant's evidence about the frequency of the offences. Read as a whole, her interview does not support or suggest the frequency attributed to her in the one answer extracted. Her explanation given in cross-examination may well have been sufficient for the jury. 120 (iv) Nor do I see any great moment in the complainant having been unaware of renovations to the appellant's home. In 2003, when renovations took place, the complainant was seven years old. She undoubtedly had weightier matters on her mind than renovations that so obsess adults. 121 (v) The asserted discrepancy in the complainant's answers about her immediate response (or non-response) to the appellant's conduct are of similarly little moment. The answers are entirely consistent with what is recognised as the confusion that afflict child victims of sex offences. 122 (vi) The complainant said that she believed the incident the subject of the 2004 allegations occurred in the context of her having watched "The Incredibles". However, she was far from definitive about this. If, as she said, the conduct of the appellant the subject of the charges was representative, or a sample of his conduct over a period, it is hardly surprising that she might have confused the surrounding circumstances of one occasion with the surrounding circumstances of another. What was important was, not her description of the surrounding circumstances, but her description of the event. The jury was plainly prepared to accept her account. 123 As I have mentioned, it is not necessary to dissect every argument put on behalf of the appellant. All were put to the jury. Obviously, all were rejected. 124 I am satisfied, on the evidence, that it was open to the jury to reach the verdicts it did. To the extent that it is relevant, I would also be satisfied beyond reasonable doubt, on the evidence, that the appellant committed each of the offences charged. I would dismiss the appeal against conviction.

[59]

General observations 125 Sentencing of the appellant was governed by Pts 3 and 4 of the Crimes (Sentencing Procedure) Act 1999 ("the Sentencing Procedure Act"). 126 Section 21A (in Pt 3) spells out, in detail, the factors that are required to be taken into account in the determination of sentence. Sub-section (2) lists aggravating factors; sub-s (3) lists mitigating factors. Sub-section (1) makes clear that the lists are not exclusive of other matters required or permitted to be taken into account under any Act or rule of law. 127 Section 28 authorises a court, if it considers it appropriate to do so, to "receive and consider" a victim impact statement at any time after conviction but before sentencing. 128 By s 44, a sentencing court is required first to set a non-parole period (sub-s (1)); and then to set a balance of term, which must not exceed one-third of the non-parole period, unless the court decides that there are special circumstances for a longer period, in which case it must make a record of a decision for doing so; (sub-s (2)); failure to comply with sub-s (2) does not invalidate the sentence (sub-s (3)). 129 Division 1A of Pt 4 contains special provisions concerning standard non-parole periods. It applies, in this case, to Counts 1-3, and 5. A Table appended to Div 1A, prescribes, in respect of certain specified offences, the standard non-parole period applicable to offences of that kind. Relevantly, standard non-parole periods are prescribed in respect of offences against s 66A, s 61M(2), and s 61M(1). 130 By s 54A(2), the standard non-parole period represents the non-parole period for an offence in the middle of the range of objective seriousness for offences of this kind. By s 54B(2), the court is required to set the standard non-parole period unless it determines that there are reasons for doing otherwise, that is, setting a non-parole period that is either longer or shorter than the standard non-parole period. 131 By sub-s (3) the reasons for which a court may take that course are only those set out in s 21A. By sub-s(4), the court is obliged to make a record of its reasons for increasing or reducing the standard non-parole period and is obliged to identify in the record each factor taken into account in making that determination; by sub-s(5), failure to comply with s 54B does not invalidate the sentence. 132 It is a corollary of s 54A(2) that, where an offence is judged to be of a gravity above or below the mid-range of offences of its kind, the standard non-parole period does not apply. However, for reasons that will appear below, that circumstance does not render the standard non-parole period irrelevant. 133 In R v Way [2004] NSWCCA 131; (2004) 60 NSWLR 168, this Court analysed Division 1A in considerable depth. Inter alia, it held that, in sentencing for offences to which Div 1A applies, it is necessary, firstly, to determine what is a notional offence in the mid-range of objective seriousness, and, secondly, to evaluate the objective seriousness of the offence in question relative to that notional offence. The Court pointed out that, while prior to the introduction of Div 1A, a routine part of the sentencing exercise was the evaluation of objective seriousness of the offence under consideration, it had not previously been necessary to approach that exercise with the same degree of analysis as is required by Div 1A; it was not necessary clearly to separate circumstances or features that were relevant to the objective gravity of the offence as distinct from the personal circumstances or features of the offender; and judges had gone about the task in a largely intuitive fashion. 134 Post Pt 4 Div 1A, however, it is necessary for sentencing judges to take a more clinical approach. It is necessary, in every case, to evaluate the objective seriousness of the offence in question alongside and against the yardstick of a notional offence of its kind that falls into the mid-range of objective seriousness (Way [76]). Accordingly, in Way, analysis of the meaning of "objective seriousness" was undertaken. Factors relevant to the assessment are: o the actus reus o the consequences of the conduct o factors that might properly be said to have impinged upon the mens rea of the offender o the mental state of the offender at the time of the commission of the offence (eg intention as distinct from recklessness) o mental illness or intellectual disability where causally related to the commission of the offence. 135 The Court drew a distinction between circumstances of the offence (of which those listed above are examples, or perhaps even a catalogue), which go to the evaluation of objective seriousness, and circumstances of the offender (eg youth, prior sexual abuse) that might explain or influence the conduct or otherwise impinge upon moral culpability, but are not relevant to that evaluation. 136 The sentencing exercise under Pt 4 Div 1A involves sequential steps:

[67]

The Remarks on Sentence 152 The judge recounted the facts of the offences as alleged by the Crown. Although he was less explicit in stating his views about the conviction than he was a little later in his judgment granting bail, it is perfectly plain from the Remarks that his Honour did not accept the validity of the convictions. He referred, for example, to circumstances that had been put to the jury as factors that (it was argued) ought to have caused the jury to doubt the veracity of the complainant. One example concerns the complainant's evidence that the appellant never spoke to her while committing the offences, and never enjoined her not to tell anybody about what he was doing. His Honour regarded this as a marked departure from the stereotype of child sexual abuse offending commonly seen in the District Court (and in this Court) and, it seems, as a significant indicator that the complainant was unreliable as a witness. His Honour also referred to defence evidence concerning the appellant's activities on 23 December; and to the absence of any corroborative evidence from L (or anybody else). He also remarked specifically on the fact that the complainant gave evidence of events said to have occurred when she was four years old, and doubted "how accurate such evidence could possibly be". All this was plainly a reflection on the complainant's veracity of which the judge took a different view from the jury. 153 His Honour correctly stated the applicable maximum penalties, and the prescribed standard non-parole periods. 154 His Honour recognised that he was required to assess the objective seriousness of the offences. It is appropriate to quote from the Remarks at some length. His Honour said: "All of the offences, except for the one in count 4, have standard non-parole periods which are applicable to offences which the judge determines are middle range offences in circumstances where the offender has been convicted after trial. Clearly he was someone convicted after trial. He is a man of previous good character and he did not use any force or violence in committing these offences. He also did not issue any threats, nor did he suggest to the complainant she should keep secret what he was doing.

[69]

On the Crown case he abused a position of trust imposed on him by accepting the young complainant in his house and then abusing her but the abuse itself did not involve a serious degree of penetration, nor were the indecent assaults, assaults of the most serious type. They were in fact touching on the breasts of a prepubescent girl …" (italics added) 155 The observations in the extracted paragraphs all appear under the heading "Characterisation of the offences". Read as a whole, they indicate that, in assessing the objective gravity of the offences, his Honour took into account: o the appellant's previous good character o that no force or violence accompanied the offences o that no threats were made to the complainant o that there was no direction or importuning to the complainant not to reveal his conduct o that the offences to which the appellant was sentenced were representative of many others o that the appellant abused a position of trust o that the abuse itself did not involve a serious degree of penetration o that the indecent assault offences were not assaults of the most serious type 156 His Honour then moved to consider the previous good character of the appellant and then, under a new subheading, asked himself: "Is the standard non-parole period applicable?" 157 His Honour recognised, correctly, that, having regard to his findings that each offence was less than the mid-range of objective seriousness, he was not obliged to impose the standard non-parole period. He also recognised, again correctly, that, notwithstanding that the standard non-parole period was not strictly applicable, it nevertheless stood as: "a reference point, or benchmark, or sounding board, or guidepost …". ( Way , [122]) 158 He said: "The Parliament however requires that I impose sentences in accordance with what they have laid down, but to impose a sentence that would be a very severe sentence would be out of all proportion. The offences cannot be compared to offences against children involving penile vaginal rape, cunnilingus, fellatio or anal sex. They did not involve brutality and no physical injuries were caused. The most serious features of offences such as this are that they were committed by an uncle and were often repeated and there is certainly a great deal of material available now by people interested in the study of criminology, to show just how damaging offences of this type can be, although no physical injury is in fact caused to the victim. That is because the damage often results in the victim feeling worthless and often victims find it difficult to form fulfilling relationships with people from the opposite sex." 159 Twice during the course of his Remarks, his Honour referred critically to the ratio of the prescribed standard non-parole periods to the maximum penalties. He said that, while he was required to follow the law, he did not have to "agree that it was just"; and that he found the proportions between the standard non-parole periods and the maximum penalties "difficult to understand". 160 He took into account that the appellant did not use any force or violence in committing the offences, and did not issue any threats, nor suggest that the complainant should keep his conduct secret. 161 He noted that, on the Crown case, the offences involved the abuse of a position of trust (indeed, that was specifically an element of the offence that constituted Count 4) but against that, he said, the abuse did not involve a serious degree of penetration nor assaults of the most serious type. 162 Although he referred in general terms to research demonstrating the damaging effects on children of sexual abuse, he made no reference to the complainant's victim impact statement. I will refer to other aspects of the Remarks when dealing with the individual grounds of appeal. * * *

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Having regard to his firmly expressed views concerning the appellant's guilt, it must be true that he was not himself satisfied to the requisite standard that those offences were truly representative. He was, nevertheless, obliged to sentence on the basis of the jury's verdicts. 170 In my opinion this aspect of the argument advanced on behalf of the appellant was based on a false factual premise. Certainly, his Honour was not satisfied to the requisite standard that the offending commenced in 2001. But neither did he sentence on that basis. He made no reference, in that part of the Remarks that dealt with the representative nature of the offences, to a starting date (of 2001 or any other time). The complainant's evidence had been that abuse occurred on each occasion (of which, on her account, there were many) that she stayed overnight. That explains the approach to the representative nature of the offence the subject of the charges. It is quite clear to me that his Honour did not accept the complainant's evidence about what had happened in 2001 (see, for example, his explicitly stated scepticism about the complainant's capacity to give "accurate" evidence about what had happened to her at the age of four), and the jury's verdict did not oblige him to do so, or to act on that basis. 171 Moreover, his Honour expressly said that he took the fact that the offences were representative into account only on the question of where they fell on the scale of objective gravity. Notwithstanding that he considered that fact as relevant to the assessment of objective gravity, he nevertheless considered that each offence was of gravity less than mid-range. 172 No other specific error is attributed to his Honour, and no other argument was advanced in respect of the contention that, absent specific error, the sentences imposed were manifestly excessive. 173 In my opinion they were anything but. That can be dealt with in the context of the Crown appeal asserting manifest inadequacy.

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(ii) "the indecent assaults were not of the most serious type". 179 In a passage which appears immediately prior to the finding that the offences were less than mid-range, his Honour referred to the appellant's prior good character, the absence of force or violence in committing the offences, and the absence of any threat, or admonition to silence on the part of the complainant. His Honour did not make any specific findings of fact. He merely recounted, in summary form, the substance of the Crown case in relation to each offence. This was interspersed with his comments upon the adequacy of the evidence to support the allegations, and, in some instances, defence evidence in contradiction of the Crown case. 180 Thus, for example, in stating the facts of the 2004 offences, his Honour said: "The first three counts on the indictment concern events when she was eight. Each concerned a separate event, and she said in relation to each one she stayed at her uncle's home sleeping with [Sh] in a large double bed. Sometimes [L] would be there with her. Her claim was that the offender would enter the room when the other two girls were asleep, would get into bed and would place his fingers in her vagina and would move them around and would touch her on the breasts. It was her evidence that this happened frequently and in fact on every occasion on which she slept over. She also said that she frequently stayed there. She gave evidence that [L] on occasions was awake when her uncle was in the room and that on occasions [L] would get out of the bed and go to the toilet, as she did. These claims were not supported by [L]." 181 His account of the 2006 offences was as follows: "[The complainant] said that when she was 10 years old and between 1 December and 25 December, in fact very close to Christmas, the same thing happened again when she was staying at his home. He placed his fingers in her vagina and moved them around and touched her on the breasts. She put these events as occurring somewhere between 23 and 25 December." 182 The assessment of objective gravity is an important element in the sentencing process. It ought not to be treated in a cursory fashion. 183 In my opinion, it was not an adequate discharge of the requirements of s 54A and s 54B to make a global finding in relation to all offences. The task required, as explained in Way, an evaluation of the gravity of each offence against a notional offence in the mid-range of objective seriousness for offences of the kind. 184 Nor was it relevant, on that assessment, to take into account the appellant's prior good character. 185 Contrary to the submissions of the Crown, the absence of force or violence, threats or importuning the complainant to silence are not, in my opinion, irrelevant to the assessment of objective gravity. But they are relevant in a limited way, and caution needs to be exercised to ensure that they are not taken into account in an impermissible way. They are principally relevant to the determination of what constitutes a notional offence in the mid-range of objective gravity. It is true that offences against s 66A are frequently accompanied by one or more of those circumstances - threats, violence, force or importuning the victim to silence. If they are absent, that may well and legitimately signal that the offence under consideration falls short of that degree of objective gravity. Accordingly, I would reject the Crown's submission that these considerations were irrelevant to that evaluation. 186 Counts 1 and 4, the two counts alleging sexual intercourse, were both constituted by digital penetration. Count 1 was brought under s 66A, which proscribes sexual intercourse with a child under 10 years. The complainant was eight years. Count 4 was brought under s 66C, which proscribes sexual intercourse with a child between 10 and 14 years. The complainant was 10 years. The age of the child - the degree to which the victim is under the prescribed age - is one factor relevant to objective gravity generally speaking, the younger the child, the more serious the offence. 187 "Sexual intercourse" is widely defined (in s 61H), relevantly, to mean sexual penetration to any extent of female genitalia by any part of the body of another person, or any object manipulated by another person; and includes fellatio and cunnilingus. 188 Courts dealing with offences against s 66A are familiar with the very wide, and sometimes brutal, means by which the offence may be committed. It is, as the sentencing judge recognised, often accompanied by threats, force, violence, entreaties or admonitions to secrecy. These factors, where present, are relevant to the assessment of objective gravity (as escalating that gravity); where absent, they are equally relevant to the assessment of objective gravity (as diminishing that gravity). 189 The determination of objective gravity is a different exercise from the exercise of selecting sentence, which takes place after all relevant circumstances, both objective and subjective, have been weighed in the balance. 190 Notwithstanding the failure of his Honour to conduct the analysis proposed in Way, I am of the view that it was open to him to conclude that each of the Counts 1 and 4 offences was of less than the mid-range of objective gravity. His Honour was therefore correct to conclude that he was not obliged to impose the standard non-parole period. That did not, however, obviate the need to regard the standard non-parole period as a reference point or guide. 191 I agree with his Honour's conclusion that each of these offences was, relative to the wide variety of offences against s 66A (and s 66C) significantly below the mid-range. I would therefore reject Ground 1 of the Crown appeal. 192 However, even in the light of that conclusion, I am also satisfied that his Honour, in respect of Count 1, did fail to have regard to the standard non-parole period as a reference point or guide. The maximum penalty provided is imprisonment for 25 years; the standard non-parole period is imprisonment for 15 years. The sentence imposed upon the appellant included a non-parole period of 4 years. That is a fraction of the standard non-parole period. 193 Moreover, had he had regard to the standard non-parole period as required, he could not reasonably have imposed the sentence he did. It is so far below the standard non-parole period as to denote error. 194 The absence of some indicia of objective gravity does not, in my opinion, amount to a mitigating circumstance. As Grove J put it in Saddler v R [2009] NSWCCA 83: "It is a well established common law sentencing principle that the absence of a factor which would elevate the seriousness of offending in a particular case is not a matter of mitigation. In plain language, it does not make what has been done by an offender less serious because it could have been worse." 195 There were, in fact, some relevant aggravating factors. Section 21A(2)(g) specifies the occasioning of substantial injury or emotional harm as an aggravating factor. The complainant's victim impact statement contains material which could have led to a finding of substantial injury and emotional harm. I do not say that it demanded such a finding, but it was not considered by his Honour. Section 21A(2)(k) makes abuse of position of trust or authority in relation to the victim an aggravating factor. That was clearly here present, (although it could not, because it was an element of the offence the subject of Count 4, be taken into account as an aggravating factor in respect of that offence) as was the circumstance specified in s 21A(2)(l): that the victim was vulnerable because she was very young (particularly, or more so, at the time of the 2004 offences, but also at the time of the 2006 offences). I recognise, however, that, in relation to each offence, the age of the victim was an element of the offence, and factored into both the maximum sentence prescribed and the standard non-parole period. Section 21A(2)(m) makes an aggravating factor where the offence is part of a series of criminal acts. 196 Apart from the mitigating factors specified by s 21A(3)(f), good character, there were few of those factors. 197 These circumstances did not justify the sentence imposed in relation to Count 1. That sentence can only be explained by inadequate attention having been given to the standard non-parole period. I would uphold Ground 2.

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Ground 3: objective seriousness and insufficient accumulation (Counts 4 and 5) 198 There are two parts to Ground 3. It was complained, firstly, that the sentence failed adequately to reflect the objective gravity of the offence that constituted Count 4 (having regard to the fact that it amounted to a repetition of the earlier offence); and that it called for a greater degree of accumulation than was imposed. 199 In considering this ground of appeal it is to be recalled that the two episodes of criminality occurred more than two years apart. The offences the subject of Counts 1, 2 and 3 were all part of one episode in 2004; the offences the subject of Counts 4 and 5 were both part of the second episode. It was, therefore, in my opinion, open to his Honour to impose concurrent sentences in relation to all offences constituting each episode, and to accumulate those imposed in relation to the second episode on those imposed in relation to the first. However, in doing so, it would be necessary to take into account, pursuant to s 21A(2)(m), that each offence was committed in conjunction with the others (episode one) or the other (episode two). In my opinion it is clear that his Honour did not take that circumstance into account. It would equally have been open to him to have imposed lesser sentences, in each grouping, that were themselves partially accumulated. Whichever approach was taken, it was necessary that the total term of imprisonment in relation to each episode, and to those episodes in conjunction, reflect the totality of the criminality. In my opinion, it did not do so. The second part of this ground has been made out. 200 It remains to consider whether the first part of the ground has been established. This exposes clearly the effect of the introduction of Pt 4 Div 1A. For sentencing purposes, what is markedly different about the Count 1 and Count 4 offences is the relevant statutory sentencing regime. No standard non-parole period is specified in relation to Count 4. Whether the sentence failed to reflect the objective gravity of the offence does not fall to be determined against the yardstick of a standard non-parole period. 201 Further, the offence against s 66C carries a maximum penalty of imprisonment for 20 years, against the 25 years that the Count 1 offence attracted. 202 In those circumstances, I have come to the view that, even though that offence was a second offence of its kind, a sentence of 8 years with a non-parole period of 4 years was not manifestly inadequate.

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209 Having regard to the view I have reached in respect of Grounds 2, 3 and 4, it is clear that the Crown appeal must be allowed and the appellant re-sentenced. That is confined to the Count 1 sentence. For reasons that will be apparent, I am of the view that it is not necessary to vary the terms of the sentences imposed in respect of Counts 2, 3, 4 and 5. It will, however, be necessary to adjust the commencement dates to take account of the date on which the appellant was taken into custody. 210 Before proposing sentences, I make the following observation. The sentencing judge was explicit in his view that the convictions were unsafe. In doing so, he gave false hope to the appellant. That does not make the re-sentencing task for this Court any easier. No doubt the appellant has been waiting for delivery of the judgment in the confident expectation that he will be released. Not only is that hope to be dashed, but, on re-sentencing, his sentence must be extended, and significantly so. 211 In my opinion, first instance judges ought to be circumspect in expressing views of the kind that were here expressed. They give false hope to offenders and complicate the task of this Court. Indeed, I have considered whether the circumstance is one that ought to be taken into account in the determination of sentence. I have concluded that it cannot. The appellant is to be re-sentenced in accordance with well-established principles concerning sentencing following a successful Crown appeal. The sentence(s) to be imposed must be at the lower end of the range properly available at first instance. 212 Here, in relation to Count 1, that is well beyond the sentence imposed at first instance. And the overall effective sentence must also be increased. The sentence I propose is based upon two fundamental principles (which, as it happens, point in opposite directions). The first is that sentencing following a successful Crown appeal must take into account the principle of double jeopardy, and be at the bottom of the permissible range; the second is that even for an offence below the mid-range of objective gravity, due regard must be paid to, and the sentence must reflect, adherence to the dictates of the legislature in prescribing the standard non-parole period. Were it not for that latter factor, the sentence I would propose would be significantly lower. While I share the sentencing judge's distaste for sentencing at the level now required by Pt 4, Div 1A, it is the duty of the Court to sentence in accordance with the statute. That requires a sentence that pays due regard to the standard non-parole period, while bearing in mind that the offence was of less than mid-range objective gravity, and the appellant's prior good character. Although I have expressed the view that the Crown has made good its submission concerning accumulation, I am further of the view that, in discharging its sentencing duty, this Court must also have due regard to the principles of totality. With that in mind, I would not interfere with the commencement date of that sentence. In fact, the sentence required by Pt 4 Div 1A is such that the other sentences will be fully subsumed. No further accumulation is called for. 213 I propose the following orders: