Teshabaev v R

Hearing dates: 26 September 2025

Decision date: 03 October 2025

Before: Adamson JA at [1]
McNaughton J at [65]
R A Hulme AJ at [66]

Decision: (1) Extend the time for the filing of the application for leave to appeal to 29 November 2024.
(2) Grant leave to appeal against conviction.
(3) Dismiss the appeal against the conviction.
(4) Refuse leave to appeal against sentence.

Catchwords: CRIMINAL LAW — appeal — conviction — tendency evidence — whether trial judge misdirected jury on tendency reasoning — whether trial judge erred in directing jury to be satisfied of conduct before inferring tendency — adequacy of directions on onus and standard of proof — whether directions diverted jury from task of determining whether Crown proved each element beyond reasonable doubt
CRIMINAL LAW — appeal — sentence — error of fact — whether miscarriage of sentencing discretion — manifest excess — offences against young child within family home — betrayal of trust — escalating sexual abuse — no remorse or insight

Legislation Cited: Crimes Act 1900 (NSW), ss 66A, 66EB, 344A
Crimes (Sentencing Procedure) Act 1999 (NSW), s 44
Criminal Appeal Act 1912 (NSW), s 5
Evidence Act 1995 (NSW), s 97
Supreme Court (Criminal Appeal) Rules 2021 (NSW), r 4.15

Cases Cited: Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54
Director of Public Prosecutions v Benjamin Roder (a pseudonym) [2024] HCA 15; (2024) 98 ALJR 644
JS v R [2022] NSWCCA 145
Liberato v The Queen (1985) 159 CLR 507; [1985] HCA 66
Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221
R v Markuleski (2001) 52 NSWLR 82; [2001] NSWCCA 290

Category: Principal judgment

Parties: Kodirjon Teshabaev (Appellant)
Rex (Respondent)

Representation: Counsel:
A Chhabra / E McGinness (Appellant)
S Lind (Respondent)
Solicitors:
Makhoul & Associates (Appellant)
Solicitor for Public Prosecutions (NSW) (Respondent)

File Number(s): 2020/352074

Publication restriction: Publication of names and any information or material that may lead to the identification of the complainant is prohibited: Crimes Act 1900 (NSW), s 578A; Children (Criminal Proceedings) Act 1987 (NSW), s 15A

HEADNOTE

[This headnote is not to be read as part of the judgment]

The applicant, Kodirjon Teshabaev, was convicted, following a trial by a jury, of 15 child sexual offences against the complainant aged 7-9 years: 3 offences of exposing a child under 14 years to pornographic videos, and 12 offences of having sexual intercourse with a child under 10 years.

At the time of the offending, the applicant (a relative of the complainant’s step-father) was 24-26 years old and lived with the complainant’s family. The offending occurred when the applicant and the complainant were alone together in the unit.

On 24 November 2023, the applicant was sentenced to an aggregate term of 24 years imprisonment, commencing 11 December 2020 and expiring 10 December 2044, with a non-parole period of 18 years.

The applicant sought leave to appeal against his conviction alleging that the trial judge erred by misdirecting the jury as to the proper approach to tendency reasoning. The applicant also sought leave to appeal against his sentence, contending that the sentencing judge erred in his factual finding on the duration of count 14 and that the aggregate sentence was manifestly excessive.

The Court held (Adamson JA, McNaughton J and R A Hulme AJ agreeing) dismissing the appeal:

Alleged error by the trial judge in misdirecting the jury as to the proper approach to tendency reasoning

(1) The trial judge directed the jury, in conformity with the then Criminal Trial Courts Bench Book, to determine what conduct it was satisfied occurred for the purpose of deciding whether the tendency was established. This did not accord with the preferred approach identified in JS v R [2022] NSWCCA 145 and approved in Director of Public Prosecutions v Benjamin Roder (a pseudonym) [2024] HCA 15: [46].

(2) However, there was no realistic possibility that the jury did not understand that the Crown was required to prove each element of each charge beyond reasonable doubt. While the form of the direction given differed in minor respects from the approach preferred in JS and Roder, the jury was not misdirected: [48].

(3) The trial judge gave several directions on the onus and standard of proof and provided each juror with a document setting out the elements of each of the 15 counts. The trial judge also gave a Markuleski direction, a Liberato direction, and a direction that the jury must be satisfied beyond reasonable doubt that the complainant was honest, reliable, and accurate in vital respects: [30]-[38].

(4) Leave to appeal was granted but the conviction appeal was dismissed: [50].

R v Markuleski (2001) 52 NSWLR 82; [2001] NSWCCA 290; Liberato v The Queen (1985) 159 CLR 507; [1985] HCA 66; JS v R [2022] NSWCCA 145; Director of Public Prosecutions v Benjamin Roder (a pseudonym) [2024] HCA 15; (2024) 98 ALJR 644, considered.

Alleged error of fact in the duration of count 14

(5) The complainant gave evidence that the duration of count 14 was “half an hour or forty minutes”: [53].

(6) On sentence, the trial judge accepted the uncontested facts proposed by the Crown, reproduced verbatim in the reasons, which included that the duration of count 14 was “about half an hour”. However, when assessing objective seriousness, his Honour said count 14 “went for about an hour” and “occurred over a lengthy period”: [54].

(7) The applicant contended that this apparent disparity caused the trial judge’s sentencing discretion to miscarry: [55].

(8) It can be inferred either that the judge meant to say “about half an hour” but said “about an hour”; or the judge said “about half an hour” and it was mistranscribed. It is fanciful to suggest that the judge disregarded his findings and made a finding contrary to the evidence. Therefore, leave to appeal on this ground was refused: [56]-[57].

Alleged manifest excess

(9) The indicative sentences imposed for each offence were significantly below the standard non-parole periods notwithstanding that none of the offences could be described as below the midrange of objective seriousness, and counts 11 and 14 were assessed as above the mid-range: [59].

(10) The aggregate head sentence of 24 years’ imprisonment implied substantial concurrency and ample allowance for offences committed as part of a single occasion: [60].

(11) There were few, if any, mitigating factors beyond the absence of criminal history. The applicant denied the offences, showed no remorse or insight, and no finding could be made that he was unlikely to re-offend: [61].

(12) The offending involved a serious betrayal of trust and continuing abuse of a young girl, escalating to painful vaginal and anal intercourse and attempts to deter disclosure: [62].

(13) The aggregate sentence was well within the range for the whole of the criminality; the non-parole period reflected the statutory ratio; and the principles of totality required a lengthy custodial term. Leave to appeal on this ground was refused: [62]-[63].

Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54; Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221, considered.

JUDGMENT

1. ADAMSON JA: Kodirjon Teshabaev (the applicant) seeks leave to appeal against his convictions for 15 child sex offences (being all the charges on the indictment) following a trial by jury in the District Court, over which Townsden DCJ (the trial judge) presided. The applicant also seeks leave to appeal against the aggregate sentence of 24 years imprisonment commencing on 11 December 2020 and expiring on 10 December 2044 with a non-parole period of 18 years.

2. The offences and the sentences indicated, as well as the maximum penalty and, if applicable, the Standard Non-Parole Period (SNPP), measured in years of imprisonment, for each count are set out in the table below. References to sections, and any references to legislation in these reasons, unless otherwise stated, are reference to the Crimes Act 1900 (NSW).

| Count | Time/age of complainant | **Alleged offence/applicant’**s conduct | Section/ max penalty/ SNPP | Indicative sentence | | 1 | Year 2 of school | Grooming a child under 14 years for unlawful sexual activity: showing the complainant pornographic videos on his phone. | S 66EB(3)/ 12 years/ 5 years | 2 years 6 months | | 2 | 8 or 9 years | Grooming a child under 14 years for unlawful sexual activity: showing the complainant pornographic videos on his phone. | S 66EB(3)/ 12 years/ 5 years | 2 years 6 months | | 3 | Sexual intercourse with child under 10 years/ Put his fingers inside the complainant’s vagina. | S 66A(1)/ Life/ 15 years | 5 years | | 4 | Sexual intercourse with child under 10 years/ Put his fingers inside the complainant’s anus. | S 66A(1)/ Life/ 15 years | 5 years | | 5 | 6 months before December 2019 | Grooming a child under 14 years for unlawful sexual activity: showing the same videos to the complainant. | S 66EB(3)/ 12 years/ 5 years | 2 years 6 months | | 6 | | Sexual intercourse with child under 10 years/ Put his fingers inside the complainant’s vagina. | S 66A(1)/ Life/ 15 years | 5 years | | 7 | | Sexual intercourse with child under 10 years/ Put his fingers inside the complainant’s anus. | S 66A(1)/ Life/ 15 years | 5 years | | 8 | “Summer” | Sexual intercourse with child under 10 years/ licked the complainant’s vagina with his tongue. | S 66A(1)/ Life/ 15 years | 5 years | | 9 | Sexual intercourse with child under 10 years/ put three of his fingers into complainant’s anus. | S 66A(1)/ Life/ 15 years | 5 years | | 10 | Sexual intercourse with child under 10 years/ inserted penis into complainant’s anus. | S 66A(1)/ Life/ 15 years | 5 years | | 11 | Another occasion | Sexual intercourse with child under 10 years/ inserted penis into complainant’s vagina. | S 66A(1)/ Life/ 15 years | 7 years | | 12 | A few months after the applicant “started doing it” | Sexual intercourse with child under 10 years/ inserted three fingers into complainant’s vagina. | S 66A(1)/ Life/ 15 years | 5 years | | 13 | Sexual intercourse with child under 10 years/ inserted three fingers into complainant’s anus. | S 66A(1)/ Life/ 15 years | 5 years | | 14 | Sexual intercourse with child under 10 years/ inserted penis into complainant’s anus, after lubrication applied to her anus. Continued until his penis reverted to being flaccid. | S 66A(1)/ Life/ 15 years | 7 years | | 15 | Attempted sexual intercourse with child under 10 years/ attempted to insert his penis into complainant’s mouth. | S 66A(1)/ s 344A(1) Life/ Not applicable | 4 years 6 months |

3. The applicant requires leave to appeal as the grounds do not involve questions of law alone: s 5(1)(b) of the Criminal Appeal Act 1912 (NSW). He also requires an extension of time as the appeal was filed one day late. An extension of time is not opposed and ought be granted.

4. If leave to appeal against conviction is granted, the applicant appeals on the following ground:

The trial judge erred by misdirecting the jury as to the proper approach to tendency reasoning.

5. If leave to appeal against sentence is granted, the applicant appeals on the following two grounds:

1 The sentencing judge erred in his factual finding on the duration of count 14.

2 The aggregate sentence was manifestly excessive.

6. The applicant does not allege that the verdicts were unreasonable or inconsistent. Accordingly, it is not necessary to do more than summarise the complainant’s evidence in support of each count (which the verdicts indicated that the jury accepted) and in support of other conduct (uncharged conduct) which was relied on for a tendency purpose.

The evidence

7. The applicant is the complainant’s step-father’s cousin. At the time of the offences, he was aged between 24 and 26 and the complainant was aged between 7 and 9 years. From 7 March 2018, the applicant lived with the complainant’s family (her mother, her step-father, the complainant and her siblings). He slept in one bedroom of the two-bedroom apartment in Bankstown and the complainant and her family slept in the other. There were several occasions when the applicant and the complainant were the only persons home in the unit. It was at these times that the alleged offending and the uncharged conduct took place.

Evidence of the alleged offending

The first incident: when the complainant was in Year 2 at school

Count 1: grooming a child under 14 years (s 66EB(3))

8. When the complainant was in Year 2 at school, the applicant started to show her “rude” videos in his bedroom. He told her that he was going to show her “how babies are born”. When she saw the video, she told him that she thought it was “disgusting”. He responded that it was not disgusting and “this is natural, to me”. He stopped showing the videos to the complainant when her mother came in. The applicant went and had a shower.

The second incident: when the complainant was 8 or 9 years old

Count 2: grooming a child under 14 years (s 66EB(3)) and; Counts 3 and 4: sexual intercourse with a child under 10 years (s 66A(1))

9. When the complainant was 8 or 9 years old, the applicant showed her “[t]he same videos” (as in count 1) (count 2). He put her on his lap, with a blanket covering them and touched her with his fingers on the inside of her “rude part” (her vagina) (count 3) and inside her “butt hole” (her anus) (count 4). When her mother arrived home, the applicant stopped, told the complainant that it was “enough for today” and had a shower. The complainant felt scared.

The third incident: about March 2019

Count 5: grooming a child under 14 years (s 66EB(3))

10. In about March 2019, about six months before the complainant’s grandfather moved in with the family in the Bankstown unit, the applicant and the complainant were home alone together. The complainant’s mother was shopping and her father was at work. The applicant showed the complainant another “rude video” and assured her that what was being depicted in the video was not “disgusting” (her reaction) but rather “natural”. He said to her, “come on, you want to do it”, to which she responded, “[d]o whatever you can but you can’t make me want to do it”. When the complainant said that she would tell her father, the applicant threatened that, if she did, she would “get into more trouble”.

Counts 6 and 7: sexual intercourse with a child under 10 years (s 66A(1))

11. The applicant pulled the complainant onto his lap and put a blanket over them. He pulled down her pants and tights and inserted his fingers into her vagina (“the rude one”, “at the front”, “the water one”) (count 6) and into her anus (“inside my butt hole”) (count 7). The complainant’s mother telephoned the applicant to say that she was returning home, which resulted in the cessation of the applicant’s conduct.

The fourth incident: one afternoon “during the summer” (between March 2018 and 27 December 2019)

Counts 8-10: sexual intercourse with a child under 10 years (s 66A(1))

12. One afternoon during summer, the complainant was at home alone with the applicant. They were playing with the complainant’s pet cat until the cat fell asleep. The applicant placed the complainant face-down on his bed and pulled her underpants and pants down. He inserted three fingers into her anus (count 9), then inserted his penis into her anus (count 10). He also licked her vagina with his tongue (count 8). The complainant felt “a bit sick” and “scared”. The conduct stopped when the complainant’s step-father rang and asked the applicant to buy ear buds at JB Hi-Fi. The applicant took the complainant with him to make the purchase.

The fifth incident

Count 11: sexual intercourse with a child under 10 years (s 66A(1))

13. On another occasion when the complainant was at home with the applicant, she was lying on a mattress. The applicant put his penis (“his rude part”) into her vagina, which hurt. The complainant bit the applicant on the leg because it was hurting, she was scared and she could not otherwise make him stop. The applicant then hit either her hand or her face.

The sixth incident: a few months after the applicant “started doing it”

Counts 12 and 13: sexual intercourse with a child under 10 years (s 66A(1))

14. Once again, the complainant was at home with the applicant (as her mother had taken her grandmother to the doctor). The complainant was in the living room and the applicant was in his bedroom, playing a game and “playing with his rude part”. When he called her into his room, she was scared. He put her on his lap, pulled her tights and underpants down to her knees, removed her jacket and pulled up her singlet. He inserted three fingers into her vagina (count 12) and into her anus (count 13).

Count 14: sexual intercourse with child under 10 years (s 66A(1))

15. The applicant put the complainant face-down on his mattress and pushed his penis into her anus. He then went to the kitchen to get some sunflower oil, which he applied to her anus before pushing his penis into her anus. She complained that it hurt and asked him not to do it but he told her that he “didn’t care” and continued to do it. His penis became flaccid, after which the applicant told her that his “rude part was happy”.

Count 15: attempted sexual intercourse with child under 10 years (s 66A(1)

16. After the anal intercourse (count 14), the applicant put the complainant on top of him on the bed while he held her with his legs. He was playing with his penis and pushed the back of her head towards his penis. She tried to shout but the applicant covered her mouth with his hand (count 15).

17. Five minutes later, the applicant took the complainant to the bathroom and made her touch his penis (uncharged). The applicant explained what he was doing to the complainant. Her evidence was that “he was trying to get this white thing out of him … I don’t know what it’s called, but he was trying to get this white thing out of himself”. This conduct ceased when the complainant’s mother rang to say that she was coming home. The complainant recalled the applicant having a shower and going to bed.

18. The complainant said that the time between the applicant inserting his fingers into her “rude part” (counts 12 and 13) and getting her to touch his penis (uncharged act after counts 14 and 15) in the bathroom was “like half an hour or forty minutes”.

Evidence of other uncharged acts

19. The complainant gave evidence that the applicant touched her ten or eleven times during the period when they were each living in her parents’ unit at Bankstown. She said that, on occasions, he used to close his bedroom door so that he would know whether her parents were coming. On one or two occasions he put the handle of a spoon into her anus, which hurt.

20. The Crown relied on the evidence of uncharged acts as well as the evidence of each of the counts as tendency evidence. The tendencies alleged in the notice served pursuant to s 97 of the Evidence Act 1995 (NSW) were as follows:

A. The tendency to have a particular state of mind, namely, to have a sexual interest or attraction towards [the complainant] during the period [between 1 March 2018 and 31 December 2019]; and

B. The tendency to act upon that sexual interest or attraction by engaging her in sexual activity, the subject of the various counts on the indictment.

21. The Crown alleged that:

The following common features attach to the evidence sought to be adduced in support hereof:

i) All the acts (both charged and uncharged) were committed upon the same complainant;

ii) They all occurred in roughly the same time period; between March 2018 – December 2019;

iii) They all occurred in the same flat … [in] Bankstown, Sydney;

iv) They all occurred during brief periods when the [applicant] was minding the complainant (then aged between 8–10 years) for her parents;

v) They all involved the showing of internet pornography to the complainant, mutual sexual activity, or both.

22. The applicant’s trial counsel did not object to the evidence of charged and uncharged acts as admissible and cross-admissible for tendency purposes.

Complaint evidence

Complaint to Ms Asad, the complainant’s teacher

23. Ms Asad gave evidence of speaking with the complainant at school on 9 December 2020, when she observed that the complainant was “not herself”. The complainant told her teacher what she subsequently told police when she was interviewed. While she was disclosing these matters to Ms Asad, the complainant was crying. Ms Asad’s evidence included the following:

[The complainant told her] “I should’ve never been born” … and then she started crying. …

…

“Miss I have an uncle who is my grandfather’s uncle’s son. He, he touches me inappropriately” and she said, “Miss he, he undress me, he takes off my undies and he put his rude part into me and he puts videos” and she didn’t say the video as said she spelled it out, she said, “It’s S-E-X video and miss he put it on and he does that to me and it hurts”. And while she was saying it she was crying.

24. Ms Asad’s incident report included that the complainant told her that she was too scared to tell her family because she did not think that they would believe her. The complainant said, “[t]hey leave me with him when they go outside and he does this to me. I don’t like it and it hurts”.

25. The complainant’s evidence about telling Ms Asad included the following:

I was scared and, um, I thought that if I tell her [Ms Asad], um, I won’t be scared any more that much.

…

I used to be scared to tell my parents, ‘cause [the applicant] used to say that my parents won’t want me anymore, and I’ll get into more trouble than he gets in trouble from my parents. And I used to be scared that my parents won’t like me anymore.

Complaint to police

26. The complainant was interviewed by police at the school and on subsequent occasions (these recorded interviews, together with pre-recorded evidence, became her evidence).

Complaint to the complainant’s mother

27. When the complainant’s mother collected her from school that day, the police informed her of the allegations. When the complainant and her mother arrived home, her mother “apologise[d] to her for [their] failure to protect her”. According to the complainant’s mother, the complainant told her that the applicant was “frightening” her and “saying things like, ‘When you grow up you will marry me. Your father and your mother will know – if they find out they will know that you are as guilty as I am and they will not own up to you’”. The complainant also told her mother that the applicant “made [her] watch bad videos” and “held [her] forcefully”.

The defence case

28. The applicant gave evidence denying the charges. He also said that the complainant accessed his phone to watch pornographic videos which he had on the phone for his own purposes. It is not necessary to detail his evidence as the jury’s verdict made plain that it did not accept it.

The appeal against conviction

29. The sole ground of appeal on conviction is that the trial judge misdirected the jury as to the proper approach to tendency reasoning.

30. In order to address this ground, it is necessary to refer to, or set out, relevant directions given in the course of the trial judge’s opening remarks and in the summing up, as well as other passages from the summing up.

31. In the trial judge’s opening remarks, his Honour made several references to the onus and standard of proof, including the following:

The accused is presumed to be innocent of any wrongdoing until a jury is satisfied beyond reasonable doubt that his guilt has been established according to law. This does not mean that the Crown has to satisfy you of its version of the facts wherever some dispute arises. What is required is that the Crown proves those facts that are essential to make out the charges and prove those facts beyond reasonable doubt. These are sometimes to as the essential facts or ingredients of the offence and you’ll be told shortly what the essential facts are in this particular case.

32. Early in the summing up, the trial judge repeated this direction. His Honour then read out and gave each juror a copy of a document (MFI 11), in which the elements of each of the 15 counts were set out under separate headings. Each element followed the same format adopted with respect to the first count, as follows:

Count 1 Elements

The Crown must prove the following elements beyond reasonable doubt:

[The two elements were listed.]

33. The trial judge also gave a separate consideration direction (that the jury was required to give separate consideration to each count) and a Markuleski direction (R v Markuleski (2001) 52 NSWLR 82; [2001] NSWCCA 290) as follows:

If you were to find the accused not guilty on any count, particularly if that was because you had doubts about the reliability of the complainant’s evidence, you would have to consider how that conclusion affected your consideration of the remaining counts.

34. The trial judge also directed the jury that it needed to be “satisfied beyond reasonable doubt that [the complainant] is both an honest and reliable witness whose evidence is accurate in vital respects”.

35. His Honour addressed the evidence of complaint to Ms Asad and the complainant’s mother and concluded by saying:

… the question is whether the evidence of complaint supports the credibility of the complainant.

36. The trial judge addressed the use of the evidence of charged and uncharged acts for a tendency purpose. Because this aspect of the summing up is the subject of the ground of appeal, it is set out in full below with numbered paragraphs, which I have added for ease of reference:

1. Part of the Crown case is that the accused had a tendency to have a sexual interest in the complainant and a tendency to act on that sexual interest by taking part in the conduct alleged in the indictment.

2. The Crown says you would be satisfied the accused had this tendency because of his conduct in both the uncharged acts as well as the 15 counts on the indictment. The Crown says this conduct reveals the accused had a tendency to have a sexual interest and act on that sexual interest in the complainant, which makes it more likely he committed the offences charged in the indictment.

3. You will need to consider the evidence relating to this alleged conduct of the accused and decide whether he did, in fact, conduct himself in the way the Crown alleges. In doing so, you do not consider each of the acts in isolation. You should consider all the evidence and decide what conduct you are satisfied occurred.

4. If you decide that all or at least some of the conduct occurred you then need to consider whether it enables the inference to be drawn that the accused had the tendency to have both a sexual interest in the complainant and to act on that sexual interest.

…

5. If you are not satisfied that any of the conduct the Crown relies upon occurred, then there is no basis upon which the tendency could be inferred. In these circumstances you must put the whole issue of tendency to one side and confine your consideration to the other parts of the Crown case.

6. If you find the accused did have a sexual interest in the complainant and acted on that sexual interest then you can use that in considering whether it is more likely he committed the specific offences with which he is charged. However, it is essential you consider in relation to each charge whether the accused had that particular state of mind and acted in a particular way on that specific occasion.

7. Finding the accused did have the tendency the Crown alleges is not enough to prove guilt. It may assist the Crown to prove the accused committed the offences but is not enough by itself. The question is whether it makes it more likely the accused conducted himself in the way the Crown alleges on any of the occasions that are the subject of the charges. That is the only way the accused’s tendency to have both a sexual interest in the complainant and act on that sexual interest may be used.

8. Ultimately, you must decide whether the specific offences with which the accused has been charged have been proven. That decision must be based upon the evidence relevant to each of the charges. This includes the evidence of the complainant about what the accused did. It will include the tendency alleged by the Crown, provided you are satisfied it has been established.

9. When considering whether a charge has been proved, you will have to decide whether the Crown has proved the essential elements of that charge.

10. The evidence the Crown relies upon to establish that he has this tendency is of a type that might provoke people to have an emotional response to it because it might be regarded as distasteful in the manner in which the person behaved. You must be careful to avoid allowing any emotional response or prejudice to distract you from a calm and objective assessment of the evidence.

11. Some of the evidence before you, as relied upon by the Crown to prove the tendency alleged, concerns incidents that are not the subject of any charge in the indictment. If you are not satisfied that an incident that is not the subject of a charge occurred then the evidence relating to it should be put completely aside. There is no other issue in the case to which it is relevant.

37. The trial judge also gave a Liberato direction (Liberato v The Queen (1985) 159 CLR 507; [1985] HCA 66):

However, it is important you understand that the accused must be found not guilty if his guilt has not been proved beyond reasonable doubt and that he is entitled to the benefit of any reasonable doubt you may have at the end of your deliberations.

It follows from this, first, if you believe the accused’s evidence obviously you must acquit. Secondly, if you find difficulty in accepting the accused’s evidence but think it might be true then, of course, you must acquit. Thirdly, if you do not believe the accused’s evidence then you should put it to one side. Nevertheless, the question will remain, has the Crown upon the basis of the evidence that you do accept proved the accused’s guilt beyond a reasonable doubt?

38. Before summarising each of the Crown case and the defence case, the trial judge reminded the jury again of the need for it to be satisfied of the elements beyond reasonable doubt.

39. Mr Chhabra, who appeared with Mr McGinness for the applicant, submitted that the trial judge’s failure to give a direction in accordance with the approach sanctioned by Basten AJA (Hamill and Dhanji JJ agreeing) in JS v R [2022] NSWCCA 145 (JS), which was approved by the High Court in Director of Public Prosecutions v Benjamin Roder (a pseudonym) [2024] HCA 15; (2024) 98 ALJR 644 (Roder) was a misdirection which resulted in a miscarriage of justice. He submitted that the direction amounted to a misdirection because the jury was directed to answer the anterior question – whether it was satisfied that the conduct said to constitute the tendency actually occurred – in circumstances where the proper approach was to ask whether the jury considered that the accused had the tendency alleged (on the basis of the evidence of the conduct relied on to support the tendency).

40. Mr Chhabra relied on what Basten AJA said at [43] of JS (which was approved in Roder):

Insofar as the applicant complained that the reasoning was ”incoherent”, this was premised on the assumption that the Crown, in a linear process, sought to prove the commission of an offence (at a standard of proof less than beyond reasonable doubt), and then relied on that finding to prove the tendency, and then relied on the tendency to prove the offence. However, this does not accurately represent the reasoning process involved. It is the tendency that is relied on as circumstantial evidence in proof of the charge on the indictment. The proper approach is to have regard to all the evidence of relied on in proof of the tendency as evidence of the tendency alleged. To the extent that the jury is satisfied of the existence of the tendency, the tendency may be relied on in proof of the charge. Given this process, it is preferable not to direct a jury to make findings as to the conduct relied on in proof of a charge. Rather the jury should be directed with respect to finding the alleged tendency.

(Emphasis added.)

41. His Honour continued, at [44]:

It is accepted that the trial judge directed the jury (in conformity with the direction in the Bench Book) to determine “what conduct you are satisfied occurred” for the purpose of determining whether the tendency was established, where that conduct was also relied in support of a count in the indictment. However, when read in the context of the summing up as a whole, including careful directions as to the onus and standard of proof, the need for separate consideration of each count, the elements of the offences, the need to accept the evidence of the complainant as to the occurrence of each count, and the direction that the tendency, if proved, did not prove guilt of the offences but was ”simply part of the process of reasoning along the pathway towards whether or not you accept beyond reasonable doubt the evidence of the complainant with regard to the two charges”, there was no risk in this case that the onus and standard of proof were not understood and properly applied.

42. In Roder, the High Court unanimously approved [43] of JS as follows:

27 Two matters should be noted about this passage. First, it correctly identifies the alleged tendency as an intermediate fact that is to be proved in its own right and then deployed in aid of the proof of each charge. For a tribunal of fact to find that an alleged tendency has been proved to a lesser standard by relying on, inter alia, direct evidence of charged acts, and then deploying that tendency in determining whether the charged acts have been proved beyond reasonable doubt, does not involve circular or incoherent reasoning. Instead, it simply means that the jury may consider the same evidence “at different stages of its deliberations with a different onus of proof and for a different purpose”.

28 Second, as noted, his Honour accepted that there was a risk of undermining the jury’s understanding of the necessity for proof of the elements of the charge beyond reasonable doubt but identified that one means of minimising that risk was to avoid giving a tendency direction that invited the jury to make findings as to the conduct relied on in proof of the charge. Instead, the direction should identify the evidence said to support the alleged tendency and invite the jury to consider whether that tendency has been established. …

(Footnotes omitted.)

43. The High Court concluded [28] by referring to [44] of JS as follows:

Otherwise, in JS, Basten A-JA noted that the balance of the summing up given to the jury meant that there was “no risk … that the onus and standard of proof were not understood and properly applied”.

44. This Court in JS and the High Court in Roder considered how best to direct a jury in circumstances where charged acts (which, as such, needed to be proved beyond reasonable doubt in order to establish guilt) were also used for a tendency purpose: that is, to prove that the accused had a particular tendency which made it more likely that the accused committed the charged acts. Because a tendency, being circumstantial evidence, does not need to be proved to any particular standard, the evidence of a charged act can be used to prove a tendency even if it does not establish the act beyond reasonable doubt. However, if the jury is satisfied of the alleged tendency and considers that the tendency makes it more likely that the accused committed the charged conduct, the tendency can be used as circumstantial evidence to prove the charge, which must be proved beyond reasonable doubt.

45. The risk (identified by Basten AJA in JS and the High Court in Roder) of directing the jury that it must be satisfied of certain conduct (being the charged conduct) in order to find a tendency is that the jury might be misled into thinking that the lower standard, which applies to this reasoning, diminishes the requirement that a charge must be proved beyond reasonable doubt before the jury can convict the accused of that charge. Basten AJA suggested that this risk could be avoided by directing the jury that it ought have regard to the evidence relied on by the Crown to establish the tendency (which may, as in JS, Roder and the present case, include evidence of the charged acts). If the jury infers the tendency from the evidence, the jury can then reason from the tendency to the consideration whether the tendency makes it more likely that the accused committed the charged acts. The jury must be directed that, before a verdict of guilty can be returned, it must be satisfied of the charge beyond reasonable doubt.

46. In the present case, the trial judge gave the direction which was in the Criminal Trial Courts Bench Book (the Bench Book) before Roder was decided. In paragraphs 3, 4 and 5 of the summing up, his Honour referred to the jury needing to be satisfied of the conduct before inferring a tendency. This did not accord with the “preferred approach”. However, the question is whether there was a material risk that the directions that were given diverted the jury from its ultimate task of determining whether the Crown had proved the elements of each charge beyond reasonable doubt.

47. I do not consider there to have been any such risk. The trial judge was fastidious about directing the jury that it needed to be satisfied of the elements of each offence before returning a verdict of guilty in respect of the corresponding count. His Honour not only directed the jury as to each element of each charge, but also gave each juror a copy of a document which set out each element, with a heading below each count directing the jury of the need for the Crown to prove each element beyond reasonable doubt. Further, the summing up emphasised the way in which evidence could be used for a tendency purpose in terms which largely corresponded with the formula approved in JS and Roder.

48. In conclusion, I am not persuaded that there was any realistic possibility that the jury in the trial in the Court below did not understand the directions given by the trial judge about the need for the Crown to prove each element of each charge beyond reasonable doubt. While the form of the direction given differed in minor respects from the approach preferred in JS and Roder, the jury was not misdirected.

49. Mr Chhabra accepted that leave under r 4.15 of the Supreme Court (Criminal Appeal) Rules 2021 (NSW) (r 4.15) was required as the applicant’s trial counsel did not object to the direction that was given. I consider that leave ought be granted. The trial judge directed the jury in accordance with the then current draft direction in the Bench Book. Although JS was handed down on 29 June 2022, about a year prior to the trial in the present case, its import was not necessarily fully appreciated until it was approved in Roder.

50. Although the sole ground on the conviction appeal has not been made out, I would be disposed to grant leave to appeal.

The appeal against sentence

Ground 1: alleged error of fact in the duration of count 14

51. The first ground of challenge to the sentence is that the trial judge erred in finding that the duration of count 14 was “about an hour”.

52. The evidence given by the complainant at trial has been summarised above. It formed the basis on which the trial judge sentenced the applicant. However, prior to the sentence hearing, the Crown proposed a document which set out the facts relevant to sentencing. The applicant’s trial counsel did not take issue with the facts set out. The “proposed facts” relating to the incident which comprised counts 12,13 and 14 were as follows:

Count 12: s66A Sexual intercourse with child under age of 10 years (DV)(digital vagina)

Count 13: s66A Sexual intercourse with child under age of 10 years (DV)(digital anus)

Count 14: s66A Sexual intercourse with child under age of 10 years (DV)(anal sex)

24. Between 24 March 2019 and 27 June 2019, when the victim was 9 and her grandmother was staying with the family, the offender, the victim’s mother, siblings and grandmother went to Costco. Afterwards, the victim and the offender were dropped off at home. The offender was to look after the victim whilst her mother took her grandmother to the doctors.

25. The offender called the victim into his bedroom. He was playing a video game and playing with his rude part (penis). The offender put the victim on the chair with him and pulled down her tights and underwear and lifted up her singlet.

27. [sic] After the offender finished playing his game, he moved the victim to the mattress on the floor. She was scared. The offender then put three fingers in her vagina and her anus.

28. The offender put a blanket on top of them and was sitting on top of the victim, who was lying face down. The offender then tried to put his rude part, his “dick” in her anus but could not get it in. He went to the kitchen to get sunflower oil. He put the oil on the victim and himself and inserted his penis into her anus. This hurt her and the victim told the offender that it was hurting and said, “Ouch, don’t do it”**. The offender ignored her.

29. This went on for about half an hour, the victim saw the offender’s penis and scrotum.

(Emphasis added.)

53. As referred to above, the complainant gave evidence that the time between the applicant putting his fingers in her “rude part” and getting her to touch his penis in the shower was “like half an hour or forty minutes”.

54. The trial judge accepted that the “proposed facts” accorded with the evidence. His Honour included the proposed facts relating to counts 12-14, word for word, in the reasons. However, when his Honour was going through the counts for the purposes of assessing objective seriousness, his Honour said that count 14 “went for about an hour” and “occurred over a lengthy period”.

55. The gravamen of the applicant’s proposed ground 1 of appeal against sentence is that the trial judge’s sentencing discretion miscarried because his Honour overstated the duration of count 14 by saying that it went for about an hour when, according to the complainant, it only went for 30-40 minutes.

56. There are three available hypotheses:

57. the judge made a slip and said, “about an hour” when his Honour meant to say “about half an hour”;

58. the trial judge said, “about half an hour”, which was mistranscribed as “about an hour”; or

59. the trial judge disregarded the findings he had made (based on the proposed facts) that the duration was about half an hour and, instead, made a finding contrary to the evidence that it was about an hour.

60. I regard the third possibility as no more than fanciful, having regard to the trial judge’s findings about each of the counts (which replicated the proposed facts document), in which his Honour said, expressly, that count 14 “went for about half an hour”. I would refuse leave with respect to the proposed ground 1 of the appeal against sentence.

Ground 2: alleged manifest excess

58. A finding of manifest excess is a conclusion that it was not open to the trial judge to impose the sentence in fact imposed because it fell outside the range of available sentences: Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54 at [6] (Gleeson CJ and Hayne J): see also the summary of authorities in Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221 at [443] (R A Hulme J, Bathurst CJ, Leeming JA, Hamill and N Adams JJ agreeing).

59. In the table at the outset of these reasons, the indicative sentences are set out, together with the maximum penalties and, where applicable, the SNPPs for each charge. The indicative sentences specified by the trial judge were, in each instance, significantly below the SNPP for each offence, notwithstanding that on no view could any be regarded as at the lowest range of objective seriousness. The trial judge found that “none of the offences could be described as being below the midrange of objective seriousness for offences of the type charged”. His Honour assessed counts 11 and 14 counts as being “above the mid-range for these offences”.

60. The aggregate head sentence of 24 years’ imprisonment implies substantial concurrency (in the limited sense in which such a concept can be reconciled with the nature of an aggregate sentence). It can be inferred that ample allowance has been made for the circumstances that several of the offences occurred as part of a single occasion or incident.

61. There were few, if any, mitigating factors on sentence save for the lack of criminal history. The applicant continued to deny the offences. There was no evidence of remorse or insight. The trial judge said that he could “not make a finding that he is unlikely to re-offend given his lack of remorse, [the] risk assessment and noting that he has not given evidence in the sentence hearing”.

62. I regard the aggregate sentence imposed as being well within the range for the whole of the criminality for which the applicant stood to be sentenced. The non-parole period reflects the statutory ratio, in the absence of a finding of special circumstances: s 44 of the Crimes (Sentencing Procedure) Act 1999 (NSW). The principles of totality required a lengthy custodial term. The offending conduct involved a serious betrayal of trust and continuing abuse of a young girl who was entrusted to the applicant’s care for short periods while her parents were temporarily absent from the family home (where all of the offences were committed). The escalating violation of the complainant’s body, which is reflected in the 15 counts, culminated in painful acts of vaginal and anal intercourse, which involved the applicant using lubricant on the complainant to assist his penetration of her. The applicant’s egregious acts were compounded by the means by which he sought to obtain the complainant’s silence. He deterred her from telling her parents by warning her that they might no longer love her if they found out. But for the sensitive wisdom of Ms Asad, the complainant’s teacher, who inferred from the complainant’s behaviour that something serious must be wrong, the offending may well have continued.

63. I would also refuse leave to appeal in respect of ground 2.

Proposed orders

64. For the reasons given above, I propose the following orders:

65. Extend the time for the filing of the application for leave to appeal to 29 November 2024.

66. Grant leave to appeal against conviction.

67. Dismiss the appeal against the conviction.

68. Refuse leave to appeal against sentence.

69. McNAUGHTON J: I agree with Adamson JA.

70. R A HULME AJ: I agree with Adamson JA.

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