Stevenson v R

0; [2011] HCA 39 Noonan v R [2021] NSWCCA 35 Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221 Papakosmas v The Queen (1999) 196 CLR 297; [1999] HCA 37 Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12 R v CTG [2017] NSWCCA 163 R v Gavel (2014) 239 A Crim R 469; [2014] NSWCCA 56 R v Moussa (2001) 125 A Crim R 505; [2001] NSWCCA 427 R v NZ (2005) 63 NSWLR 628; [2005] NSWCCA 278 R v Wilson (2005) 62 NSWLR 346; [2005] NSWCCA 20 Roach v R (2019) 344 FLR 429; [2019] NSWCCA 160 Scaysbrook v R [2022] NSWCCA 69 Scott v R [2020] NSWCCA 81 SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13 TKWJ v The Queen (2002) 212 CLR 124; [2002] HCA 46 Vaughan v R [2020] NSWCCA 3 Xie v R (2021) ALR 371; [2021] NSWCCA 1 Texts Cited: --- Category: Principal judgment Parties: Owen Stevenson (a pseudonym) (Applicant) Regina (Respondent) Representation: Counsel: Mr GD Wendler (Applicant) Ms C Curtis (Respondent)

Solicitors: Monica McKenzie Solicitors (Applicant) Office of the Director of Public Prosecutions (Respondent) File Number(s): 2019/73025 Publication restriction: --- Decision under appeal Court or tribunal: District Court of New South Wales Jurisdiction: --- Citation: --- Date of Decision: 11 December 2020 Before: Acting Judge Berman SC File Number(s): 2019/73025

Judgment

1. JOHNSON J: By Notice of Appeal filed on 5 July 2021, the Applicant, Owen Stevenson (a pseudonym), seeks leave to appeal with respect to conviction and sentence following his trial before Acting Judge Berman SC and a jury at the Newcastle District Court upon three counts of aggravated indecent assault under s.61M(2) Crimes Act 1900 and one count of sexual touching of a child between the age of 10 and 16 years under s.66DB(a) Crimes Act 1900.
2. The complainant, James (which is not his real name), is entitled to protection against identification by operation of s.578A Crimes Act 1900 and s.15A Children (Criminal Proceedings) Act 1987. As identification of the Applicant may tend to identify James, the Applicant is also referred to by a pseudonym in this judgment.

The Aggregate Sentence and Indicative Sentences

1. On 11 December 2020, the Applicant was sentenced to an aggregate term of imprisonment for 10 years comprising a non-parole period of six years commencing on 10 March 2020 and expiring on 9 March 2026, with a balance of term of four years expiring on 9 March 2030.
2. In accordance with the requirements for aggregate sentencing, his Honour nominated the following indicative sentences: Count Offence Maximum Penalty and Standard Non-Parole Period (SNPP) Indicative Sentence 1 Between 31 December 2017 and 22 December 2018, assault with act of indecency on a person aged under 16 years - s.61M(2) Crimes Act 1900 Maximum Penalty: 10 years' imprisonment Imprisonment for six years with a non-parole period of three years SNPP: Eight years' imprisonment 2 Between 31 December 2017 and 22 December 2018, assault with act of indecency on a person aged under 16 years - s.61M(2) Crimes Act 1900 Maximum Penalty: 10 years' imprisonment Imprisonment for six years with a non-parole period of three years SNPP: Eight years' imprisonment 3 Between 31 December 2017 and 22 December 2018, assault with act of indecency on a person aged under 16 years - s.61M(2) Crimes Act 1900 Maximum Penalty: 10 years' imprisonment Imprisonment for seven years with a non-parole period of three years and six months SNPP: Eight years' imprisonment 4 Between 25 January 2019 and 29 January 2019, sexual touching of a child between the ages of 10 and 16 years - s.66DB(a) Crimes Act 1900 Maximum penalty: 10 years' imprisonment Imprisonment for eight years No SNPP

Grounds of Appeal

1. The Applicant relies upon the following grounds of appeal: 1. Ground 1 (conviction appeal) - that there occurred a significant imbalance in the trial resulting in a fundamental irregularity and consequent miscarriage of justice because the trial Judge, although reminding the jury not to give the complainant's (James) evidence-in-chief greater weight because they were to see and hear it twice, did not additionally remind and identify for the jury the inconsistencies in the complainant's (James) evidence following the replaying of the complainant's (James) Joint Investigation Response Team ("JIRT") interview. 2. Ground 2 (sentence appeal) - that the aggregate sentence was manifestly excessive by reason of the manifest excessiveness of the indicative sentences.

Overview of the Trial

1. Given the grounds of appeal, it is sufficient to outline the charged offences, and the course of the trial, in the following way.
2. In the period 2017 to 2019, the Applicant (who was born in October 1980) was living in a de facto same-sex relationship with his partner at a house in rural New South Wales. The Applicant has a son (born in December 2010) from a previous heterosexual relationship. The son, Michael (which is not his real name), would stay with the Applicant every second week.
3. James was born in December 2008. James' mother was a good friend of the Applicant and the Applicant's partner.
4. James used to visit the Applicant's house to play with Michael. James and Michael were close in age and were good friends. The Charged Offences
5. The charged offences arose out of two occasions when James stayed overnight at the Applicant's house, the first in the second half of 2018 and the second on the Australia Day weekend of 2019.
6. On the first occasion, James (then aged nine years) was sleeping in the spare bedroom in the upstairs area of the house. He was in bed, but was unable to sleep as he was scared. The Applicant (then aged 38 years) offered to lie down in the bed with him and James agreed. James alleged that the Applicant then touched James' penis and masturbated him (Count 1). The Applicant then forced James to touch the Applicant's penis and to masturbate him (Count 2). The Applicant then put a liquid between James' legs and rubbed his penis backwards and forwards between James' legs (Count 3).
7. The second incident occurred over the Australia Day weekend in January 2019. On that occasion, James (then aged 10 years and one month) stayed at the Applicant's house over two nights. On the first night, all the occupants of the household were sleeping downstairs on mattresses or lounge cushions as it was hot and there was air conditioning downstairs.
8. During the night, after Michael had gone to sleep, the Applicant woke James. The Applicant said to James "Do you want to play around like we did before?". James did not know what he meant, but said "I don't know, but OK". James took off his pants at the Applicant's request and the Applicant straddled him, put his penis between James' legs and "went up and down" (Count 4). It was the Crown case that the Applicant said "You know you're a good boy. Do you want me to put it in your bum?" to which James replied "No". The Applicant then said "Aw, shut up, just do it" and James replied "No, I don't want to do this anymore". The Applicant said "Look up" and the Applicant's partner dropped some liquid onto James' face. James started to cry and was scared.

The Course of the Trial

1. The trial commenced on 21 September 2020 at the Newcastle District Court. In accordance with s.306U Criminal Procedure Act 1986, the evidence-in-chief of each of James and Michael was given by playing the recorded JIRT interview conducted with each of them. The video recording of James' JIRT interview conducted on 22 February 2019 (MFI2) and the video recording of Michael's JIRT interview of 1 March 2019 (MFI5) were played to the jury.
2. On 17 July 2020, pre-recorded evidence hearings involving James and Michael had been conducted before her Honour Judge Traill at the Newcastle District Court pursuant to Schedule 2, Part 29, Criminal Procedure Act 1986. Edited versions of the videos of the pre-recorded evidence hearings were played for the jury (MFI4 - James' evidence; MFI6 - Michael's evidence).
3. Michael's mother gave evidence at the trial on 22 September 2020 (T19-29). Other witnesses were called on that day including the Applicant's partner (T42-70), James' mother (T73-100), Senior Constable Nicole Davidson (T101-107) and Detective Senior Constable Matthew Davis (T108-112).
4. The Crown case closed on the afternoon of 22 September 2020. The Applicant commenced to give evidence at 3.45 pm on that day (T113-119) and his evidence continued on 23 September 2020 (T129-155).
5. The defence case was closed and, soon after, the Crown delivered a closing address to the jury (T158-166). Immediately thereafter, trial counsel for the Applicant made his closing address to the jury (T166-178).
6. Thereafter, the jury retired for the lunch break. After lunch, the trial Judge summed up to the jury with the jury retiring to consider its verdicts at 2.35 pm on 23 September 2020, the third day of the trial.
7. No challenge is made in this Court to any part of the trial Judge's summing up, which included a direction under s.293A Criminal Procedure Act 1989 concerning James' evidence and a summary of the closing addresses of the Crown and defence counsel.
8. Shortly after retiring to consider verdicts, the jury sent a note to the trial Judge requesting the discs of James' JIRT interview and pre-recorded evidence. After receiving the jury note, the trial Judge discussed the request with counsel and the jury returned to Court.
9. His Honour gave the jury the following further direction, in which, in accordance with R v NZ (2005) 63 NSWLR 628; [2005] NSWCCA 278, the jury were told that the recordings needed to be played in open court in the presence of the parties (SU31-32): "HIS HONOUR: Ladies and gentlemen, I just got you in to deal with this note you have sent me. I will read out the note so you all know what we are talking about. 'We all request the discs 1 and 2 of [James] please.' I am not going to explain why this is but just accept from me that it is: I cannot do that. If you want to see the recording of the interview, the only way that can happen is if you are in court and we are all here and we play you that recording in its entirety and the same goes for the recording of [James'] evidence that you saw on Monday. If you want to see it, the only way that can happen again is if we are all in court and we play that in its entirety. I do not say that to discourage you. If you want to do that then we will organise it but I cannot do what you have asked me, which is to give you the discs to play in the jury room. So have a chat amongst yourself at some convenient time and we will do whatever you want. If you still want to have them replayed in that manner we will do it. It will not finish today, of course, but we will do it tomorrow. If you do not want to you do not have to. If you do not want to watch them being replayed you do not have to, okay? We will wait for you to tell us if you want to see them and we will organise it. Thank you. JURY RETIRED TO FURTHER CONSIDER ITS VERDICTS AT 3.18PM HIS HONOUR: Right, if I don't hear anything else from the jury I'll see you all at 5 to 4."

Affidavit of Trial Defence Counsel

1. In this Court, Mr Wendler, counsel for the Applicant, read without objection, the affidavit of Robert Noel Hussey sworn 31 January 2022. Mr Hussey was trial counsel for the Applicant.
2. In the affidavit, Mr Hussey explained why no application was made to the trial Judge for any direction concerning the jury viewing James' JIRT interview whilst deliberating. Mr Hussey said: "2 I appeared as [the Applicant's] counsel in his trial and sentence proceedings that were before the Newcastle District Court in September and December 2020. 3 I have been asked by Ms Monica McKenzie, solicitor, to explain why I did not make an application for the trial judge - either before or after the replaying of the complainant's JIRT video - to provide additional instructions to the jury reminding them of inconsistencies in the complainant's evidence, so as to balance the forensic impact of having the jury see and hear the complainant's JIRT video interview for a second time. 4 In making this affidavit, I have refreshed my memory from the transcript of the summing up of His Honour Judge Berman SC through to the return of verdicts by the jury. I otherwise rely on my memory of the trial. 5 My memory of the trial is that I had no cause for concern as to His Honour's summing up and directions to the jury. This includes the directions that His Honour gave to the jury both prior to, and after, the replaying of the complainant's JIRT video. 6 There was a short period of time from closing addresses through to the request to replay the complainant's JIRT video. I remember that I had made mention of the complainant's body language and demeanour in his JIRT interview during my closing address to the jury. I thought that perhaps this may have been the reason why the jury wanted to watch the complainant's JIRT video again. 7 I recall making mention of numerous inconsistencies referable to the complainant's evidence during my closing address. His Honour then repeated these inconsistencies when he summed up my closing address. Given the short period of time that had elapsed from the completion of His Honour's summing up and directions, through to the request to rewatch the complainant's JIRT video, I was of the view that the arguments made in my closing address - which were repeated by His Honour - were still fresh in the jury's mind, both before and after the playing of the complainant's JIRT interview. 8 When the jury made the request to replay the complainant's JIRT video, I was aware of the decision in R v NZ [2005] NSWCCA 278 and the preferred procedure outlined by the Court in paragraph [210] of that case. I was familiar with the preferred procedure when there is a request by a jury to rewatch a child witnesses' video recorded evidence, as I had both read the case and had encountered a similar request in a prior child sexual assault trial that I appeared in the previous year (2019). 9 I had no cause for concern nor any disquiet with the way in which His Honour responded to the jury note and the directions that he gave to the jury both before and after the replaying of the JIRT video. I was satisfied that His Honour was both familiar with, and had complied with, the suggested procedure in R v NZ, given the way he directed the jury. Due to the atmosphere of this trial - i.e. the short period of time that had elapsed from the conclusion of my closing address through to the replaying of the JIRT video - there was no need in my view for any application to be made for His Honour to repeat what I said were inconsistencies in the complainant's evidence, in circumstances where I thought those arguments were still very fresh in the jury's mind."

Should This Court View James' JIRT Interview and Pre-Recorded Evidence for the Purpose of Determining the Appeal?

1. An issue arose at the hearing of the appeal as to whether the Court should view the recordings of James' JIRT interview and his pre-recorded evidence. The Crown acknowledged that it was a matter for the Court to determine whether this step should be taken, but submitted that the Court should view the JIRT interview only as this was the sole recording viewed again by the jury whilst deliberating.
2. Mr Wendler submitted that the Court should view both James' JIRT interview and his pre-recorded evidence.
3. It remains a matter for the Court to determine whether viewing the recordings of the JIRT interview and the pre-recorded evidence is both necessary and appropriate for the purpose of determining the ground of appeal.
4. Where this issue has arisen for consideration, the High Court of Australia has expressed concern that the viewing by an appeal court of a recording of an interview or evidence may give rise to imbalance, as the appeal court would not be viewing the evidence of other witnesses: SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13 at [26]-[35], [116]. It was said that, at the least, it is necessary for an applicant's counsel to identify the forensic purpose to be served by having the appeal court view the video recording: SKA v The Queen at [116].
5. In Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12, the full High Court rejected a submission by the Crown that the Court should view the video recording of the complainant's evidence as played at the trial for the purpose of determining an unreasonable verdict ground of appeal. The Court said at [36]: "The position maintained by the respondent is not one that should generally be adopted by courts of criminal appeal. In SKA [(2011) 243 CLR 400 at 410-412 [27]-[35]], French CJ, Gummow and Kiefel JJ rejected the suggestion that the mere availability of a video-recording of a witness' evidence at trial meant that the proper discharge of the function of the appellate court, to make its independent assessment of the evidence, necessitated a viewing of the recording. There may be cases where there is something particular in the video-recording that is apt to affect an appellate court's assessment of the evidence, which can only be discerned visually or by sound. In such cases, there will be a real forensic purpose to the appellate court's examination of the video-recording. But such cases will be exceptional, and ordinarily it would be expected that the forensic purpose that justifies such a course will be adopted by the parties, rather than upon independent scrutiny by the members of the court [SKA v The Queen (2011) 243 CLR 400 at 410-411 [30]-[31]; see also at 432-433 [116] per Crennan J]."

Ground 1 - Appeal Against Conviction Based Upon Claimed Irregularity and Miscarriage of Justice Arising from the Jury Seeing and Hearing James' JIRT Interview Without Additional Directions Being Given by the Trial Judge Submissions for the Applicant

1. Mr Wendler acknowledged that the Applicant required leave under Rule 4.15 Supreme Court (Criminal Appeal) Rules 2021 to rely upon the conviction ground of appeal in the absence of any application made at trial for the direction now relied upon in this Court.
2. It was submitted that a miscarriage of justice had occurred in this case as the trial Judge had not reminded the jury of aspects of the defence closing address in which mention was made of specific areas of inconsistency in James' evidence. It was argued that the approach adopted by the trial Judge had not complied with what was said by this Court in R v NZ at [210].
3. Counsel submitted that what occurred in this trial did not maintain a proper balance between both the prosecution and the defence cases, so as to infringe what was said by the High Court in Gassy v The Queen (2008) 236 CLR 293; [2008] HCA 18.
4. With respect to the requirement for leave under Rule 4.15, given the failure of trial counsel to request the directions now relied upon, Mr Wendler submitted that application of Rule 4.15 cannot operate to the detriment of the Applicant if an injustice will be visited upon him: Papakosmas v The Queen (1999) 196 CLR 297; [1999] HCA 37 at [72]; R v Wilson (2005) 62 NSWLR 346; [2005] NSWCCA 20 at [20].
5. It was submitted that the failure to remind the jury of defence submissions concerning the reliability of James' evidence, following the replaying of the JIRT interview, was vitally important to the preservation of balance in the trial. Despite no request being made by trial counsel for further directions, it was submitted that Rule 4.15 should not disentitle the Applicant from relying on this ground in this Court. Submissions for the Crown
6. The Crown submitted that this had been a short trial, where the trial Judge reminded the jury in the summing up of the suggested inconsistencies in James' account, and with that having occurred on the same day when the jury requested to view the recording again. The absence of any application for further directions, it was submitted, supported a conclusion that there was no injustice to the Applicant, nor had a miscarriage of justice been demonstrated in this case. In this respect, the Crown pointed to the affidavit of Mr Hussey which supported a conclusion that there was no miscarriage of justice in this case.

The Sentence Appeal

1. Following the return of guilty verdicts on 24 September 2020, a sentencing hearing was listed at the Newcastle District Court on 11 December 2020 and the Applicant was refused bail.
2. The sentencing hearing proceeded on 11 December 2020 with the tender by the Crown of a number of documents (including a victim impact statement) (Exhibit 1) with the defence tendering a report dated 20 November 2020 of Rebecca Smith, psychologist (Exhibit 2), a statement dated 18 December 2019 of Detective Senior Constable Penelope Allan (Exhibit 3) and an affidavit of the Applicant dated 11 December 2020 (Exhibit 4). In addition, both the Crown and counsel for the Applicant furnished written submissions on sentence (MFI1 and MFI2 respectively).
3. The Applicant has a prior criminal history which did not include sex offences. The Applicant had been sentenced by way of non-custodial orders for contravention of an apprehended violence order (in 2005, 2007 and 2009) and using a carriage service to menace or harass (in 2009 and 2013).
4. No oral evidence was given at the sentencing hearing and short oral submissions were made on behalf of the Applicant and the Crown.
5. At the conclusion of the sentencing hearing, his Honour proceeded by way of ex tempore sentencing remarks.
6. The sentencing Judge commenced his remarks with reference being made to James' victim impact statement made on 8 December 2020, when James was 11 years old. His Honour said (ROS1): "One of the important matters in assessing the sentence to impose on someone for a criminal offence is the harm that that offence has caused. In this case, the victim of four offences of either indecent assault or sexual touching, is a child who has prepared a Victim Impact Statement. Despite his young age, the victim has eloquently expressed the significant harm that these offences have caused to him. It is sad to say that such consequences are commonplace when sexual offences are committed upon children. This is what the victim said: 'When my mum asked me if it's had an impact on me, I said, 'Of course it has. Ever since it happened I have been sad and depressed. I can't get it out of my head. It's like it's stuck in my head. I've felt bad about it because it shouldn't happen to kids. It's changed everything. I have less fun now. I find it harder to be with friends. I don't want to go to school. My mum says school has been the biggest impact as I used to love going to school. I was good and on time and never missed school. After, I couldn't go to school because I couldn't get up, because I was too depressed. I also didn't want to go because of my old teachers at school. I don't trust men now. I don't trust anyone any more. I have had to see mum sad, which makes me sad. She trusted them and they were her close friends and they betrayed he trust. I was nervous and a little scared of court at first, would get sick in the tummy. I was fearful the whole time, because of speaking up'."

Ground 2 - The Aggregate Sentence was Manifestly Excessive by Reason of the Manifest Excessiveness of the Indicative Sentences Submissions for the Applicant

1. Mr Wendler submitted that the aggregate sentence was manifestly excessive by reason of the manifest excessiveness of the indicative sentences nominated by the sentencing Judge.
2. It was submitted that the Applicant, aged 38 years at the time of sentence, had lamentable childhood years, with reliance being placed upon the psychological report which noted his dysfunctional upbringing and exposure to domestic violence and instability, although not detecting any mental health abnormalities.
3. Whilst noting that the Applicant had a limited criminal history, it was submitted that he had no history of criminal offences nor had he been sentenced to terms of imprisonment in the past.
4. In addition, by the time the Applicant came to be sentenced, he had been physically and sexually assaulted in prison so that he was likely to spend his sentence in protective custody.
5. Whilst noting that there is no appeal against an indicative sentence only, Mr Wendler submitted that manifest excess in an indicative sentence may reveal why an aggregate sentence is itself manifestly excessive: Evans v R [2017] NSWCCA 281 at [41], [50]-[51].
6. It was submitted that Counts 1 and 2 involved a course of conduct which was opportunistic and involved a breach of authority and trust, but was not accompanied by threats of violence and was of short duration. It was submitted that the sentencing Judge was correct to characterise the objective seriousness of these offences as being slightly below the mid-range. It was submitted, however, that the indicative sentence of six years' imprisonment with a non-parole period of three years for each offence was itself manifestly excessive and that this contributed to the imposition of a manifestly excessive aggregate sentence.
7. With respect to Counts 3 and 4, it was submitted that the sentencing Judge had erred by finding that these offences were slightly above the mid-range of objective seriousness and that the head indicative sentences of imprisonment for these two offences were close to the maximum penalty for offences of this type.
8. It was submitted that this Court should uphold the second ground of appeal and resentence the Applicant to a lesser aggregate term of imprisonment. Submissions for the Crown

Conclusion

1. I propose the following orders: 1. refuse the Applicant leave under Rule 4.15 Supreme Court (Criminal Appeal) Rules 2021 to rely upon Ground 1; 2. refused leave to appeal against conviction; 3. grant leave to appeal against sentence; 4. allow the appeal against sentence; 5. quash the aggregate sentence imposed at the Newcastle District Court on 11 December 2020 and, in its place, sentence the Applicant to a term of imprisonment for eight years and six months comprising a non-parole period of five years commencing on 10 March 2020 and expiring on 9 March 2025 with a balance of term of three years and six months commencing on 10 March 2025 and expiring on 9 September 2028; 6. the earliest date upon which the Applicant will be eligible for release on parole is 10 March 2025.
2. DAVIES J: I agree with Johnson J.
3. BELLEW J: I agree with Johnson J.

Amendments 24 June 2022 - Pseudonym changed 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: 24 June 2022