Steel (a pseudonym) v R

Background

1. The applicant had been in an "on again off again" relationship with the complainant's mother since the complainant was about 5 or 6 months old. The applicant was the biological father of the complainant's two younger step-siblings. The charged offences were alleged to have taken place on three occasions. The first two occasions (Counts 1 to 3) were alleged to have occurred in the Easter school holidays in April 2016. On both those occasions, the applicant took the complainant, who was five years old, from her bedroom in the middle of the night and placed her on a sheet in the backyard where he indecently assaulted her. The third occasion (Count 4) was alleged to have taken place in late 2018 or early 2019 at a different address.
2. The complainant first disclosed the conduct to a teacher in mid-2019 during a lesson on child protection, telling the teacher that, at her old house, her father had taken her into the backyard where he lay her down, lifted up her top and put his private parts on her stomach.
3. The issue at trial was whether the offences described by the complainant occurred.

Grounds of Appeal

1. The applicant appeals his convictions, relying on a single ground, namely: The verdicts in respect of Counts 1-3 are unreasonable in that they are inconsistent with the not guilty verdict in respect of Count 4 and cannot otherwise be supported by evidence in the trial.
2. The applicant also seeks leave to appeal against the sentence imposed upon him. He relies on a single ground: The sentence is manifestly excessive.

Relevant facts

1. In what follows I set out the facts that I have found in accordance with the approach identified by the High Court in Dansie v The Queen (2022) 274 CLR 651; [2022] HCA 25 at [16], which I explain below. I will identify controversial matters in the evidence and make clear my finding in relation to those matters when addressing the grounds of appeal.
2. The complainant was born on 28 December 2010. The complainant was five years old at the time of the events the subject of Counts 1 to 3 and eight years old when she was first interviewed by the police. The complainant was 11 years old when she gave evidence at the trial.

The complainant's evidence

1. It is important in understanding the issues on appeal to appreciate the way in which the complainant's evidence in chief emerged. The complainant was first interviewed by the police on 14 August 2019. The recording equipment malfunctioned part-way through that interview. The participants in the recording were unaware of that technical failure so continued the interview. Notes were taken of the unrecorded parts of that interview by Ms Fern Mayak, a Child Protection Case Worker for the Department of Communities and Justice and Detective Senior Constable Leigh Gardiner, the Officer in Charge of the case and interviewing officer. Those notes were tendered in the trial.
2. The complainant was interviewed again the next day, 15 August 2019. Both interviews were played as part of the complainant's examination in chief pursuant to s 306U of the Criminal Procedure Act 1986 (NSW). The complainant's examination in chief also comprised a short portion of evidence pre-recorded on 15 April 2021. Further evidence was given during the trial on 5 and 9 August 2021, where the complainant was cross-examined and re-examined.
3. When first interviewed on 14 August 2019, the complainant said that she had come to talk about her dad who "didn't do very nice things to me". Those things happened "in my old house twice, and in my new house that I'm living in now". Both the first and second occasions were when the complainant was in kindergarten in 2016.
4. Of the first occasion (the subject of Count 1), the complainant said that it happened at night, when everyone was asleep. The applicant (who she referred to as "dad") came into her room, woke her up, took her to the backyard of the house, laid her down on a sheet and "started taking my clothes off and not doing nice stuff". The applicant was initially on top of the complainant. He put his penis against her belly and near her leg. He then rolled or flipped her over, got on top of her again and started doing the same thing. The complainant said the applicant rubbed his "rude part" against her belly and near her leg. The complainant marked the lower chest and the inner thigh areas of a body chart to indicate where the applicant's penis touched her body.
5. During the first interview on 14 August 2019, the complainant said that the applicant threatened that, if she told her mother, her mother would never get a job, that she would become homeless and that "DOCS" would take her children off her. She also described the applicant picking her up and taking her to a trampoline where he indecently assaulted her again before carrying her inside. In the second interview on 15 August 2019, the complainant stated that those events took place during the second incident.

Examination in chief

1. In pre-recorded evidence given on 15 April 2021 that was interrupted by a legal issue, the complainant stated that she told the truth during her two earlier interviews. When the complainant's examination in chief resumed during the trial on 5 August 2021, she confirmed that she had been doing her best to be truthful in her earlier accounts.
2. The complainant confirmed that the incident on the trampoline had taken place during the second occasion. Whilst they were on the trampoline, the applicant's belly, his legs and his penis touched the complainant's belly and legs. The complainant marked a body chart to show where the applicant's body touched her own on the trampoline.
3. Also consistent with what she had said in her second interview, the complainant gave evidence that the applicant heard a noise over the fence during the first incident and that the applicant made the threat during the second incident.
4. The complainant then described what took place on the first occasion. That description is consistent with the content of her earlier interviews, subject to the difference described above, being that the applicant carried her onto the trampoline during the second occasion. Q. You're one step ahead of me, thank you [complainant] for showing that to us. Thank you. Any remaining envelopes can be placed out of the way, thank you. Okay [complainant]. Now I'm just going to ask you some questions about that first time that appears at the top in red. Okay? So just the first time. Okay? You told Detective Lee about some things that happened on a sheet in the backyard. I'm just going to ask you some questions about what happened on the sheet. Is that okay? A. Yeah. Q. Where, in the backyard, was the sheet? A. On the pathway. Q. On the path. Can you describe, or tell me, where the path is in the backyard? A. When you first walk out of the backyard door of the laundry door that leads to the backyard, you come forward and then you turn left and then there's a path. Q. That's a very good description, thank you [complainant]. So, what was underneath the sheet? A. A concrete path. Q. You told Detective Lee that you were wearing a onesie, a Monster High shirt and undies. I'm just going to ask you some questions about what you wore on the first time. Okay? A. Yep. Q. Can you tell us what the Monster High shirt looked like? A. It was black with pink sleeves and then on the front of it had Monster High dolls. Q. Okay. How long was that shirt? Did it cover all of your tummy, or parts of your tummy? A. All of it. Q. Thank you. When you were on the sheet in the backyard the first time, did you say anything to the accused when he was doing not nice things? A. I don't think so. Q. Did you do anything when the accused was doing not nice things to you on the sheet the first time? A. Yes. Q. What did you do? A. I tried to push him off. Q. How did you do that? A. I got my palms and put them near his shoulders and then tried to push him. Q. What happened when you did that? A. I couldn't push him off and then he said, "Stop." Q. Okay, and did you stop when he said that? A. No. Q. What did you do? A. I kept going but then I gave up because he was too heavy. Q. Thank you. You told Detective Lee that the accused flipped you over. I'm just going to ask you some questions about what happened then, okay? A. Yeah. CROWN PROSECUTOR: Might the witness be given envelope H? HER HONOUR: Yes. CROWN PROSECUTOR: Q. What do you see [complainant]? A. A front of a girl and a back of a girl. Q. Okay. I just want to ask you about during that first time when the accused flipped you over, what part of your body was touching the sheet when that happened? A. The back of my body. Q. When the accused flipped you over, what part of your body was touching the sheet then? A. The back of my body. Q. When you say he flipped you over, can you tell me what you mean? A. He put one hand on my waist and then the other and then he sort of like, just like, rolled me over in the air and put me down. Q. So what changed about how your body was touching the sheet when he did that? A. When he first put me down my belly was touch, my back was touching the sheet and then when he flipped me my belly was touching the sheet. Q. Okay, all right, thank you. When your belly was touching the sheet, what happened next? A. He started rubbing his penis on my body. Q. And what part of your body was he rubbing his penis of? A. The side of, the side of my belly and my, the side of my back. Q. Do one of those two pictures that you've got in front of you show the place where the accused rubbed his penis when you were on your tummy on the sheet? A. Yeah. Q. Would you be able to mark, you can choose the colour, where the accused rubbed his penis on your body when you were on your belly? A. Yeah. Q. You're holding up, is that the back of the little girl? A. Yeah. HER HONOUR: I can't see. CROWN PROSECUTOR: Can everyone see? HER HONOUR: No, I, could you hold that up again for me please [complainant]? I see that now. Mr Tuckey, can you see that okay? TUCKEY: Yes, your Honour, I can. HER HONOUR: Thank you. CROWN PROSECUTOR: Q. Thank you [complainant]. What colour did you use then [complainant]? A. Blue. EXHIBIT #6 PICTURE OF BACK OF GIRL MARKED BY COMPLAINANT TENDERED, ADMITTED WITHOUT OBJECTION Q. [the complainant], when he was rubbing his penis on that part of your body, on the side that you've just shown us, did you say anything? A. No. Q. Did you do anything? A. No. Q. While you were on your tummy on the sheet, did he touch any other part of your body apart from that? A. I can't remember. Q. I'm just going to ask you now a question about what happened on that first time. Were you outside in the backyard? A. Yeah. Q. Did you go inside the house afterwards? A. Yeah. Q. How did you get back inside the house? A. I ran back inside. Q. Why did you run back inside? A. Because the accused was on top of me. Q. Where was the accused when you ran back inside? A. Looking over the fence because he heard something. Q. And you told Detective Lee that you shut your bedroom door quietly so you didn't wake up your mum. Why didn't you want to wake up your mum? A. Because she was sleeping. Q. You told Detective Lee that it was hard to sleep when you went to bed afterward. Why was it hard to sleep? A. Because I didn't know if he was coming around to do it again.

Cross-examination

1. In cross-examination, the complainant was shown three photographs of trampolines from which she selected the photograph marked Trial Exhibit 9 as the one that was most like the trampoline they had owned, although she noted that theirs was black and worn out. The complainant recalled that the trampoline was not set up when they initially moved into the first address and that, once it was set up, it was taken down again when they moved. The complainant's mother later gave evidence to the same effect and said that the complainant and her siblings had received the trampoline as a Christmas gift in 2015 and that it had been set up in early January 2016 and taken down before they moved.
2. The complainant agreed that she "sometimes" had fun with the applicant, for example, when they played "the tickle monster game", that he sometimes helped her get ready for school, that she was sometimes happy with him, and that she "[o]n some occasions" thought of the applicant as her dad.
3. The complainant was asked in cross-examination whether she recalled going to a reptile park with the applicant. The complainant initially said she recalled going to a reptile park but not with the applicant. A short time later, when court resumed after a break, the complainant informed the witness intermediary that she remembered something that she did not mention before but wanted to say. The complainant explained that she did not recall the applicant being at the reptile park, but she did recall him being in the car on the way home. The complainant said it was scary because he was arguing with her mother and clutching the steering wheel. The complainant's mother later described the same event.
4. The complainant was cross-examined at length on what she had said in the unrecorded portion of the first interview. She was asked on numerous occasions whether she recalled having said in that interview, speaking of the second occasion, that she was on top of the applicant and he was holding her down. The complainant said that she could not remember having said that.
5. In the course of cross-examination about what she had said in the unrecorded portion of the first interview about the third incident, the complainant said, inter alia, that she thought she said that it was after Christmas. As to whether the applicant had been staying at her home for a number of nights prior to the third incident, the complainant said, "I think he was". Of the address in question the complainant said, "[h]e would stay, like, every - once in a while".

Other evidence

1. The complainant's mother gave evidence about the nature of her relationship with the applicant, describing it as "[h]orrible", and "[o]n again, off again". During the period when they lived at the first address, she said the applicant lived with them "really off and on" and that he would split his time between that house and his mother's house, when he was not in gaol. It was the same in 2016 when they were still at that address. The complainant's mother gave evidence that the applicant did not stay overnight in the second address.
2. The complainant's mother initially said that she moved from the first address before Easter in 2016 but later said it was "not long after Easter day". The family moved to two other addresses in the area before moving to the second relevant address. The complainant's mother lodged a residential bond for the one of those addresses on 2 November 2016. The complainant's mother said that they moved to the second address "[a]round the start of 2018, possibly March". The complainant's mother said that she had seen the applicant at a Monster Truck show on 20 April 2018. She was able to identify the date based on photographs on her mobile phone. The complainant's mother said that she had not, at that time, seen the applicant since 2017 and that the applicant had not stayed overnight with her between the end of 2017 and April 2018. The complainant's mother described an occasion when she saw the applicant outside their house in a white car, although she was unable to recall when it was. She said it was "probably mid-year" but could not say whether it was mid-2018 or mid-2019.
3. The complainant's mother agreed that there were occasions when they were living together when the applicant would help get the kids ready for school. In cross-examination by the Crown Prosecutor with leave, the complainant's mother denied that she could be mistaken about the applicant having been present at the second address on some occasion in December 2018 or January 2019. The complainant's mother described the complainant's first day of Year 3, and said the complainant was "excited but nervous, cause we'd just moved into a new house". Pausing there, the complainant's mother's evidence was inconsistent on this issue. She elsewhere suggested that by the time the complainant entered Year 3, they had lived at the second address for about 12 months. The complainant's mother denied that the applicant was present on the morning of the complainant's first day of Year 3 but said that he was present for her first day of Year 2.

Applicant's submissions

1. The applicant submitted that the prosecution case relied primarily on the evidence of the complainant, there being no forensic or medical evidence and no witnesses to the alleged assaults.
2. The applicant's submissions focused on Count 4. The applicant pointed out that the events the subject of Count 4 were closest in time to the first complaint which was made approximately five months after that event was alleged to have occurred. The offence was alleged by the complainant to have occurred when the applicant was staying at the second address, but the applicant said that this was contradicted by the evidence of her mother who stated that the applicant had never stayed at that address. The applicant submitted that this contradiction impacted on the reliability of the complainant in respect of that count, and that the complainant's unreliability on that count impacted on the assessment of her reliability on the other counts.
3. It was submitted that the evidence showed the complainant's account of the remaining offences was "riddled with inconsistency and uncertainty", including an inconsistency between her first account given to police on one day and a subsequent account given the following day. The applicant submitted that the issue before this Court is whether, having regard to the "unreliable evidence" in respect of Count 4 and the inconsistencies in respect of the remaining counts, this Court would entertain a doubt as to the applicant's guilt in respect of Counts 1 to 3.
4. The applicant referred to M v The Queen (1994) 181 CLR 487 at 493, where Mason CJ, Deane, Dawson and Toohey JJ said that in most cases, a doubt experienced by an appellate court will be a doubt which a jury ought to have experienced, and that it is only where a jury's advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred. He correctly submitted that the principles in M applied equally to judge alone trials: Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29.
5. The applicant referred to Dansie for its reiteration of the principles in M. He also cited Dansie at [16] for the following: 16 Where the trial has been by judge alone, the reasons of the trial judge must be approached by the court of criminal appeal performing that function with circumspection lest the findings of fact made by the trial judge divert the court from undertaking the requisite independent assessment of the evidence. The court will be required to consider the arguments of the parties in the appeal and will be entitled to treat findings of fact made by the trial judge about which no issue is taken in the appeal as an accurate reflection of so much of the evidence as bore on those findings. But the question for the court in every case will remain whether the court's assessment of the totality of the evidence leaves the court with a reasonable doubt as to guilt which the court cannot assuage by having regard to such advantage as the trial judge can be taken to have had by reason of having seen and heard the evidence at trial.

Crown submissions

1. The Crown submitted the verdict of not guilty in relation to Count 4 did not demonstrate that the primary judge lacked confidence in the credibility or reliability of the complainant or rejected her evidence. The trial judge accepted the complainant's evidence as truthful but recognised there was a qualitative difference in her evidence concerning Counts 1 to 3 compared with Count 4. Given there was a logical basis for differentiating between the two verdicts, they were not inconsistent.
2. The Crown described as "flawed" the applicant's assumption that the complainant's evidence in relation to Count 4 is unreliable in part because the evidence of the complainant's mother is to be preferred. The mother's struggle to recall dates and her "imperfect recollection" of the periods the complainant had spent living with her meant there was no reason, according to the Crown, to prefer her evidence over that of the complainant.
3. The Crown instead submitted that, on Counts 1 to 3, the complainant's evidence was sufficiently credible and reliable to support a finding of guilt. The Crown relied on the primary judge's acceptance of the complainant as an impressive witness, who gave clear, direct and cogent evidence, answered questions carefully and confidently and did her best to tell the truth, without showing any animosity to the applicant in the course of her testimony.
4. The Crown rejected the assertion that the complainant's evidence was "riddled with inconsistency and uncertainty", instead describing the consistency and detail of that evidence across the various accounts she gave as a powerful indicator of her truthfulness and of the cogency of her account.
5. The Crown submitted that none of the matters raised by the applicant individually or collectively raise a doubt about the complainant's reliability or credibility, and even if they did, it would only be a doubt that the trial judge's advantage in seeing and hearing the evidence was capable of resolving.

Consideration

1. In M v The Queen (1994) 181 CLR 487; [1994] HCA 63 at 492-493, Mason CJ, Deane, Dawson and Toohey JJ stated: Where a court of criminal appeal sets aside a verdict on the ground that it is unreasonable or cannot be supported having regard to the evidence, it frequently does so expressing its conclusion in terms of a verdict which is unsafe or unsatisfactory. Other terms may be used such as 'unjust or unsafe', or 'dangerous or unsafe'. In reaching such a conclusion, the court does not consider as a question of law whether there is evidence to support the verdict. Questions of law are separately dealt with by s. 6(1). The question is one of fact which the court must decide by making its own independent assessment of the evidence and determining whether, notwithstanding that there is evidence upon which a jury might convict, 'none the less it would be dangerous in all the circumstances to allow the verdict of guilty to stand'. … Where, notwithstanding that as a matter of law there is evidence to sustain a verdict, a court of criminal appeal is asked to conclude that the verdict is unsafe or unsatisfactory, the question which the court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. But in answering that question the court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses. On the contrary, the court must pay full regard to those considerations. (Footnotes omitted.)
2. Subsequently, in MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53, Gleeson CJ, Hayne and Callinan JJ considered, at [34], the reasons why a jury may arrive at a verdict of acquittal: 34 Since the ultimate question concerns the reasonableness of the jury's decision, the significance of verdicts of not guilty on some counts in an indictment must necessarily be considered in the light of the facts and circumstances of the particular case. Furthermore, it must be considered in the context of the system within which juries function, and of their role in that system. A number of features of that context were emphasised in MacKenzie. They include the following. First, as in the present case, where an indictment contains multiple counts, the jury will ordinarily be directed to give separate consideration to each count. This will often be accompanied by a specific instruction that the evidence of a witness may be accepted in whole or in part. Secondly, emphasis will invariably be placed upon the onus of proof borne by the prosecution. In jurisdictions where unanimity is required, such as New South Wales, every juror must be satisfied beyond reasonable doubt of every element in the offence. In the case of sexual offences, of which there may be no objective evidence, some, or all, of the members of a jury may require some supporting evidence before they are satisfied beyond reasonable doubt on the word of a complainant. This may not be unreasonable. It does not necessarily involve a rejection of the complainant's evidence. A juror might consider it more probable than not that a complainant is telling the truth but require something additional before reaching a conclusion beyond reasonable doubt. The criminal trial procedure is designed to reinforce, in jurors, a sense of the seriousness of their task, and of the heavy burden of proof undertaken by the prosecution. A verdict of not guilty does not necessarily imply that a complainant has been disbelieved, or a want of confidence in the complainant. It may simply reflect a cautious approach to the discharge of a heavy responsibility. …

Conclusion in relation to the conviction appeal

1. In AJ v R (2022) 110 NSWLR 339; [2022] NSWCCA 136, a case involving allegations of child sexual assault, Beech-Jones CJ at CL, observed: 105 … An assessment of the quality and reliability of the evidence of a child witness said to be the victim of sexual abuse is an especially difficult matter for an appeal court confined as it usually is, and was in this case, to the written transcript of their various JIRT interviews and their pre-recorded evidence. The jury had the opportunity, which this Court did not, to assess numerous aspects of SS's and NL's evidence that might be seen as affecting their reliability, such as SS's and NL's maturity, emotional state, whether they were comfortable or nervous in answering questions, whether they were suggestible or needed prompting and, ultimately, whether some aspect of their answers was truly a self-contradiction or just a lack of sustained focus (or something else). The jury also had the opportunity to observe all of the members of their family including SS's mother and the applicant in the context of considering whether SS and NL were manipulated to falsely accuse the applicant, or whether SS was manipulated to falsely retract her allegations. These matters are of significance not just because they bear out the force of the above statements in Pell, but because they also bear upon the assessment of whether the matters pointed to by the applicant concerning their evidence, such as the manner and timing of their disclosures, and alleged internal inconsistencies in their versions of events, are such as to warrant this Court concluding that "even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted". For the reasons explained, in this trial, that "allowance", that is, the scope of matters potentially affecting their evidence which can be "explained by the manner in which it was given", is relatively wide.
2. His Honour's observation applies to the present case. The trial in this matter was conducted under difficult circumstances, during one of the COVID-19 lockdowns, with each of the witnesses appearing via AVL. As the trial judge noted in the verdict judgment, there were technological difficulties throughout the trial, in particular during the complainant's evidence.
3. It is plain that her Honour's detailed consideration of the evidence was aided by the considerable advantage that her Honour had over this Court in observing each of the witnesses give evidence: see [360]-[373] of the verdict judgment.

Appeal against sentence

1. The applicant also sought leave to appeal against his sentence pursuant to s 5(1)(c) of the Criminal Appeal Act.
2. The applicant fell to be sentenced in relation to three counts of indecent assault of a child under 16 years contrary to s 61M(2) of the Crimes Act (as the provision stood at the relevant time). The offences carried a maximum penalty of 10 years imprisonment. A standard non-parole period of 8 years applied.
3. On 13 July 2022, the applicant was sentenced to an aggregate term of imprisonment of 7 years and 6 months with a non-parole period of 4 years and 6 months commencing on 10 August 2020. The applicant is first eligible for release to parole on 9 February 2025. The aggregate head sentence expires on 9 February 2028.
4. The sentencing judge specified the following indicative sentences: 1. Count 1: Imprisonment for 5 years with a non-parole period of 3 years. 2. Count 2: Imprisonment for 5 years with a non-parole period of 3 years. 3. Count 3: Imprisonment for 6 years with a non-parole period of 3 years and 9 months.
5. The applicant does not challenge the findings of fact made by the trial judge which I will record here.
6. During the Easter school holidays in April 2016, the applicant entered the complainant's room when everyone else in the house was asleep. He woke her and carried her into the backyard where he lay her on a sheet that was already there. The applicant removed the complainant's clothes and pulled her shirt up to near her shoulders. He got on top of her, his body touching hers, and rubbed his penis on her body, on the side of her belly and leg. He also lifted up the complainant's shirt and put his penis underneath it. The complainant tried unsuccessfully to push the applicant off. He told her to "stop" as she attempted to do so. When the applicant heard a noise from over the fence and went to investigate, the complainant took the opportunity to run inside. She found it difficult to sleep but did not see him again that night. This incident was the subject of Count 1.
7. About a week later, the applicant again woke the complainant and carried her into the backyard where he placed her on a sheet that was already there. He got on top of her and "started doing the stuff to [her]". The applicant kissed the complainant's face and neck, and his penis touched her body, near her vagina. This incident was the subject of Count 2.

Applicant's case

1. The applicant was born on 11 August 1983. He was aged 32 years old when he committed the offences and was 38 years old at the time of sentence. The applicant had an extensive criminal history dating back to 1999 when he was 15 years old. He had a significant number of prior convictions both as a juvenile and as an adult. As a juvenile, he was sentenced for indecent assault on a child under 16 years to 18 months' probation and required to attend a sex offenders' program.
2. As an adult, the applicant had a significant number of convictions for domestic violence offences for which he had, at times, served periods of imprisonment. He also had what the trial judge described as an "extensive history of charges relating to contravening apprehended domestic violence orders, possessing a knife in a public place, various driving offences, and failure to appear with bail acknowledgments". The applicant's history of prior convictions was taken into account but did not aggravate the offending.
3. The applicant was born in Western Sydney, growing up there and in Dubbo. He was raised by his mother, who used methylamphetamines. The applicant described his childhood as "okay" but said that he was exposed to violence within his mother's relationships and he and his siblings were physically abused by two of her partners.
4. The applicant attended school until the start of Year 8. He was in special classes in primary school and attended a special education school for children with both intellectual and emotional disabilities in Years 7 and 8. He had behavioural problems at school and frequently fought with students and abused teachers. He was diagnosed with attention-deficit hyperactivity disorder (ADHD) when he was 12 years old and took medication until he left school. He had had limited employment and, at the age of 16, began receiving a disability pension due to his intellectual disability.
5. The applicant is illiterate and can read and write a few words and not whole sentences. Testing by the neuropsychologist, Mr Gorham, revealed that his overall intellectual functioning was in the borderline range which equates to the bottom 3% of the population. He demonstrated impairment in basic attention, mental control and efficiency, working memory, speed of information processing and areas of higher-level thinking. His cognitive and intellectual limitations were accompanied by marked impairments in adaptive functioning that were described as having been evident throughout his life. Mr Gorham opined, and the trial judge accepted, that the applicant's intellectual development disability was a contributing factor to his offending behaviour.

The sentencing judgment

1. The primary judge assessed each of the offences as approaching the mid-range of objective seriousness for offences of their kind and observed that Counts 2 and 3 "are additionally objectively more serious" given the threats made by the applicant which were designed to silence the complainant. The trial judge's assessment of objective seriousness, which is not challenged by the applicant, was informed by the following matters: 1. The offences occurred in the complainant's home where she was entitled to feel safe from harm and predation. She was vulnerable and sleeping in her bed when the applicant woke her. 2. There was some limited premeditation evidenced by the applicant's laying down of a sheet in a secluded area of the backyard. He did so to prevent detection. Her Honour found that notwithstanding some premeditation, the offences were opportunistic and not planned or organised in the sense contemplated by s 21A(3)(b) of the Crimes (Sentencing Procedure) Act 1999 (NSW). 3. The nature of the offending conduct which included contact with the complainant's skin by the applicant's penis and other parts of his body. Her Honour considered the conduct that comprised each of the three offences separately. 4. In respect of Count 1, the applicant knew (from her efforts to push him off her) that the complainant was distressed and actively wished him to stop, yet he continued to offend with a callous disregard for her. 5. The complainant was just 5 years old (noting that the age range of the offence extends to 16). 6. The position of trust occupied by the applicant and his age, noting that the 27 year age differential between them was substantial. The trial judge made clear that she was careful not to double count "under authority" which her Honour described as an "element". 7. That the applicant committed the offences for sexual gratification. 8. That the complainant was harmed. She was scared, confused and plagued by "bad thoughts" afterwards.
2. Other relevant findings of the trial judge on sentence include the following: 1. The applicant continued to maintain that he was not guilty of the offences. There was accordingly no evidence that he had demonstrated any remorse. 2. Noting that Mr Gorham had assessed the applicant as falling within the "well above average" risk category, her Honour was not satisfied that the applicant was unlikely to re-offend. 3. The applicant's prospects of rehabilitation were guarded at best (noting the opinion of Mr Gorham that they would be significantly enhanced with continuing treatment). 4. Section 21A(5AA) of the Crimes (Sentencing Procedure) Act limits the manner in which self-induced intoxication can be used in sentencing by providing that it cannot be relied upon as a mitigating factor. Her Honour took into account the age at which the applicant's drug use commenced. 5. The trial judge took into account the applicant's reported sexual abuse as a child noting that, while it could not be regarded as an excuse, it might aid in explaining why he committed the offences.

Applicant's submissions

1. The applicant referred to the general principles concerning intervention by this Court on the ground that a sentence is manifestly excessive as stated in Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221 at [443]. He submitted that in this case the exercise of the discretion by her Honour miscarried by the imposition of an "unreasonable and plainly unjust" sentence, referring to House v The King (1936) 55 CLR 499; [1936] HCA 40.
2. The applicant referred to the comments of this Court in MLP v R [2014] NSWCCA 183 at [44], to the effect that sentencing courts should be careful when asked to utilise statistics and comparative cases. He submitted that, while recognising such limitations, there is some guidance, both as to the assessment of objective gravity and the appropriateness of the sentence imposed, in an examination of such material.
3. The applicant relied on a table summarising 16 comparative cases contained in an abbreviated version of a table compiled by the Public Defenders Chambers. He submitted that these summaries demonstrate the varied objective conduct captured by the present offence and the varied personal circumstances of the respective offenders.
4. The applicant acknowledged the various distinguishing factors between his case and those contained in the table. Nevertheless, it was submitted that the applicant's mild intellectual disability, "found to be causally connected to his offending, is particularly significant when distinguishing the applicant from other offenders". The sentencing judge found that the applicant's moral culpability and the call for measures of deterrence were reduced, calling for a significant degree of leniency. The applicant submitted that, given the primary judge's findings that the offending approached the mid-range, the aggregate sentence and indicative sentences are manifestly excessive.

Crown submissions

1. The Crown submitted that the applicant's reliance on the table of comparative cases is misplaced, as there are various important differences between aspects of that case and the present case. As such, it submitted that those cases are of limited utility and that they do not demonstrate that the sentence was manifestly excessive.
2. The Crown submitted that even though the applicant, by virtue of his mental condition, should enjoy the benefit of a finding that his moral culpability is reduced, that this must be considered in context. It noted the applicant's ability to appreciate that what he was doing was wrong, his lack of remorse, his likelihood or re-offending, his "guarded" prospects of rehabilitation and his lack of prior good character.
3. The Crown submitted that no error was shown in the trial judge's finding that only minor accumulation was required between Count 1 and Counts 2 and 3, as her Honour relevantly took into account the applicant's special circumstances. It further submitted that the applicant has not demonstrated that the aggregate sentence of imprisonment imposed by the primary judge was outside the exercise of her Honour's broad discretion.

Consideration

1. The Court of Criminal Appeal summarised the principles relevant to a finding of manifest excess in Hughes v R [2018] NSWCCA 2 at [86], as follows: 86 When it is contended that a sentence is manifestly excessive it is necessary to have regard to the following principles derived from House v The King (1936) 55 CLR 499; [1936] HCA 40 at 505; Lowndes v The Queen (1999) 195 CLR 665; [1999] HCA 29 at [15]; Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54 at [6]; Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64 at [58]; Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [25], [27]; and Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45 at [59]: (1) appellate intervention is not justified simply because the result arrived at in the court below is markedly different from sentences imposed in other cases; (2) intervention is only warranted where the difference is such that it may be concluded that there must have been some misapplication of principle, even though where and how is not apparent from the reasons of the sentencing judge, or where the sentence imposed is so far outside the range of sentences available that there must have been error; (3) it is not to the point that this Court might have exercised the sentencing discretion differently; (4) there is no single correct sentence and judges at first instance are allowed as much flexibility in sentencing as is consonant with consistency of approach and application of principle; and (5) it is for the applicant to establish that the sentence was unreasonable or plainly unjust.
2. It is equally well established that the principal focus in the determination of a ground alleging manifest excess in the case of an aggregate sentence will be whether that aggregate sentence reflects the total criminality. The indicative sentences are not themselves amenable to appeal, although they may be a guide to whether error is established in relation to the aggregate sentence: JM v The Queen [2014] NSWCCA 297; (2014) 246 A Crim R 528 at [40]. The fact that the indicative sentences are excessive does not necessarily mean that the aggregate sentence is excessive. The fundamental question is whether the aggregate sentence is manifestly excessive when viewed against the totality of the criminality evident in the offences: McTague v R [2020] NSWCCA 83 at [47].
3. The critical issue identified by Mr Fraser for the applicant on the sentence appeal was the applicant's intellectual disability. The applicant attended a special education school for children with intellectual and emotional disabilities, and he left school at the start of year 8. The applicant is functionally illiterate and can read and write only a few words and not whole sentences. The applicant has received a disability pension based on his intellectual disability since age 16.

Re-sentencing

1. The applicant must be resentenced: Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37. The relevant nexus between the applicant's limited intellectual functioning and the offending should be reflected in that sentence. I find that the applicant's moral culpability and the need for denunciation are reduced and that the applicant is not a suitable vehicle for a full expression of general deterrence. The applicant's intellectual disability, which was causally connected to his offending, is particularly significant. The applicant's moral culpability and the need for general and specific deterrence were reduced. The applicant is entitled to a significant degree of leniency.
2. It is important in resentencing that the applicant displays a number of psychological vulnerabilities in the context of a highly dysfunctional and traumatic childhood such that the principles in Bugmy are relevant and must be taken into account.
3. It of course remains true that the applicant, having been convicted after trial, has not demonstrated remorse for his offending, was found to present a "well above average" risk of re-offending and has only guarded prospects of rehabilitation. The applicant also has an extensive criminal history which, while it did not amount to an aggravating factor, disentitles him to leniency that he might otherwise have received and demonstrates that he is not a person of prior good character for whom the offending was out of character.
4. The offences committed by the applicant in the present case were serious. He breached the trust reposed in him as, in effect, the stepfather of the complainant, offending against her in her home at night while the other residents in the house were asleep. It was necessary for some element of accumulation "to avoid any suggestion that what is in effect being offered is some kind of a discount for multiple offending": R v MAK [2006] NSWCCA 381; (2006) 167 A Crim R 159 at [18].
5. Taking all of these matters into account, I would re-sentence the applicant to an aggregate sentence of 6 years and 6 months imprisonment with an aggregate non-parole period of 4 years imprisonment. This involves a total period of imprisonment reflecting an appropriate degree of accumulation between Count 1 and Counts 2 and 3 (where the conduct underlying each of the three counts occurred at the same time, meaning it was appropriate that the sentences be essentially concurrent).

Conclusion and proposed orders

1. I propose the following orders: 1. Leave to appeal against conviction granted. 2. Appeal against conviction dismissed. 3. Leave to appeal against sentence granted. 4. Appeal against sentence allowed. The sentence imposed on 13 July 2022 is quashed and in lieu thereof the following sentence is imposed: 1. The offender is sentenced to an aggregate term of imprisonment of 6 years and 6 months with an aggregate non-parole period of 4 years to commence on 10 August 2020. 2. The following indicative sentences are identified: 1. Count 1: Imprisonment for 4 years with a non-parole period of 2 years and 6 months. 2. Count 2: Imprisonment for 4 years with a non-parole period of 2 years and 6 months. 3. Count 3: Imprisonment for 5 years with a non-parole period of 3 years. 1. The offender is first eligible for parole on 9 August 2024.
2. FAGAN J: I have had the advantage of reading Payne JA's judgment in draft.
3. For the purpose of determining the application for leave to appeal against conviction I have reviewed the evidence at trial in its entirety and I have considered the applicant's arguments as to why it is said the learned trial judge ought to have had a reasonable doubt concerning his guilt on Counts 1 to 3. My independent evaluation of the evidence has not given rise to any such doubt on my part. With respect to those counts I consider it was open to the learned judge to resolve, as she did, the discrepancies in the complainant's account and the conflicts between some parts of her evidence and the recollections of other witnesses, particularly her mother. I am able to resolve those discrepancies and conflicts in much the same way as the learned trial judge did and as Payne JA has articulated.
4. I concur with Payne JA's reasoning as to the strength and acceptability of the complainant's account and as to the rational basis upon which her Honour was left with a reasonable doubt concerning Count 4 while finding that Counts 1 to 3 were proved beyond reasonable doubt. I agree leave to appeal against conviction should be granted but that the appeal should be dismissed.
5. I also agree with Payne JA's reasons and proposed orders concerning the sentence appeal and have nothing to add on that part of the application to this Court.
6. SWEENEY J: I have had the considerable advantage of reading Payne JA's judgment.

Endnote

1. The pseudonym has been chosen better to reflect the dictates of s 578A of the Crimes Act 1900 (NSW) and s 15A of the Children (Criminal Proceedings) Act 1987 (NSW), than the initials by which the applicant was described in the proceedings below. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 15 December 2023