Wan v R; R v Wan

Wan v R; R v Wan - [2019] NSWCCA 86 - NSWCCA 2019 case summary — Zoe

[4]

The Crown case at the trial

The Crown case was that the applicant and the complainant (who were aged 69 and 88 respectively in March 2015) met in 2013 during an excursion to the Blue Mountains organised by their local council. Following this, they formed a friendship based upon shared interests.
Towards the end of 2014 they went on a trip to Port Stephens. During the trip they shared a motel room and slept in separate beds. One night, the complainant awoke to find the applicant in his bed engaging in what he described as "impolite" and "indecent behaviour" towards him: the applicant was naked and the complainant's clothing had been removed but he was not aware of that occurring. The complainant made it clear that he was not happy with this and there was a period of time during which they were unfriendly. They nevertheless rekindled their friendship.
At about 9:00am on 24 March 2015, the applicant drove to the complainant's house, collected him and brought him back to the applicant's apartment. They discussed development plans relating to their local church. The applicant prepared a cup of coffee for the complainant who drank it. The complainant had no memory of what occurred between that point in time and when he awoke in hospital the following day. The Crown alleged that the applicant had put sleeping tablets called "Restavit" containing Doxylamine in the complainant's cup of coffee, with the intention of sexually assaulting him (Count 1).
The Crown alleged that the offences charged in Counts 2 to 16 then occurred on the applicant's balcony, in his bedroom or in his living room and dining area, prior to the applicant driving the complainant home at about 5:00 to 5:30pm on the same day. The complainant's grandson, with whom the complainant lived, answered the front door and found the applicant saying words to the effect of "[h]elp, help. Your grandfather's fallen over. Come down now". They went down the drive of the battle-axe block where the applicant's car was parked and found the complainant "slumped against a brick wall". He was bleeding from a gash on his head and, according to the grandson, was "very disoriented and unresponsive".
An ambulance was called and the complainant was taken to the local hospital. He awoke the next day with no memory of what occurred after he drank the coffee. He felt that his "brain was relatively blurry". The applicant collected him from the hospital on the following day and drove him home.
On 20 May 2015 a DVD was received by a community association of which the complainant was a member and for whom he regularly taught computer lessons to other members. The Agreed Facts tendered in evidence stated that the DVD was sent by the applicant. It had on it approximately 20 minutes of footage of the applicant engaged in various sexual acts with the complainant but with the recording edited so as to not display the applicant's face. The association forwarded the DVD to the police on 25 May 2015.
Prior to the applicant's interview by the police on 10 December 2015, police arranged for the complainant to telephone the applicant to discuss the events of 24 March 2015 (the "pretext call"). The conversation was recorded. The applicant did not refer to any sexual conduct between them on that day or to any filming of the sexual activity.
On 14 December 2015, the police executed a search warrant at the applicant's apartment. The police located a packet of Restavit in the refrigerator and a video of one hour and fifty minutes duration on the applicant's computer ("the Long Video").
The DVD sent to the community association was a short version of the Long Video. The Long Video portrayed the sexual acts giving rise to Counts 2 to 15. In his interview with police that was tendered in evidence, the applicant stated that the sexual acts were consensual and that he had filmed them because the complainant had denied to him that they had had sexual contact during their visit to Port Stephens referred to in [7] above. The applicant stated that he had sent the DVD to the community association to prevent the complainant taking advantage of others in the way he had taken advantage of the applicant. He identified a sexual act that was not depicted in the Long Video. That act became the subject of Count 16 in the indictment.
The Crown alleged that the complainant had never engaged in consensual sexual relations with the applicant and, in particular, did not consent to, and was not aware of, the acts that occurred on 24 March 2015.
In the course of the police investigation, a hair sample was taken from the complainant. Analysis indicated that Doxylamine was present in the complainant's system between 10 December 2014 and 10 May 2015. The Crown called expert evidence from Dr Gunja, a clinical and forensic toxicologist, that Doxylamine was a sedative and antihistamine.
When asked what one would expect to observe about an 88 year old person if he or she ingested more than one tablet (25 mg) of Restavit, Dr Gunja said: "You would expect them to be quite drowsy, to have difficulty opening their eyes, have difficulty standing up and walking, have difficulty in responding to voice commands. They may be sleeping for a prolonged period of time, many hours".
When asked how it would affect the working of the person's brain, he said: "It would have a significant effect on your cognitive capacity, on your ability to have communication in a meaningful way. It would have significant effect on your motor capability, maybe unable to walk around and stand upright. It would have a significant effect [on] your ability to remember what happened while you were on this medication."
The Crown case was that the symptoms that Dr Gunja described were consistent with the complainant's demeanour as depicted in the Long Video and with his "very disoriented and unresponsive" demeanour following his fall on 24 March 2015.

[5]

The defence case at the trial

The defence denied that the applicant administered an intoxicating substance and denied that he engaged in any sexual acts with the complainant without the complainant's consent. Its case was that there was an ongoing consensual relationship between the complainant and the applicant, and that the complainant denied this to protect his reputation within his church. The defence alleged that, contrary to the complainant's evidence that they were not close and did not meet often, the applicant and the complainant had a "very close and intimate relationship". The defence tendered evidence including photographs and emails to support that contention.
It was also the defence case that sexual activities occurred between the applicant and the complainant on the Port Stephens trip referred to in [7] above and, for a second time, sometime in about February 2015. It contended that this latter occasion could not have been 24 March 2015 because there was evidence that it was raining that day, whereas the Long Video depicted a "bright, clear sunny day".
The defence took issue with the adequacy and reliability of the police investigation and the expert evidence called by the Crown. First, it extracted a concession from the senior analyst who wrote a report relating to the complainant's hair sample that she had made an error in her report. Secondly, it elicited from Dr Gunja that Doxylamine is commonly found in various types of over-the-counter medications such as cold and flu tablets, antihistamines and sleeping tablets, and that the complainant's symptoms after his fall were consistent with concussion which could have been caused by falling over and hitting his head. Thirdly, it elicited concessions from the police officer in charge of the investigation that the chain of custody of the hair sample was not satisfactorily established and that the number of tablets in the Restavit box had not been determined when it had been seized under the search warrant.

[7]

The date issue

The applicant first contended that the Crown case had a "real problem" because the alleged offences could not have occurred on 24 March 2015 which was the date alleged in each count on the indictment. In a judgment of 20 April 2018, the trial judge concluded that whilst a date stated in an indictment is not usually essential, the date stated in this instance was critical to the indictment and he subsequently instructed the jury that they must acquit unless satisfied beyond reasonable doubt that the offence took place on 24 March 2015.
The applicant's point was a simple one, namely, that 24 March 2015 was "a rainy, overcast, very windy day" whereas it appeared from its contents that the Long Video was filmed on a "clear sunny day". The applicant added that the Crown's difficulties in this respect were compounded by its failure to call an expert meteorologist or introduce other evidence to resolve the apparent conflict.
The evidence at the trial of rain on 24 March 2015 arose out of descriptions of the events that occurred at the end of the day: the complainant's fall when the applicant drove him home and the complainant's subsequent admission to hospital. The 000 emergency call was made at 5:37pm by the complainant's grandson. He is recorded as having said to the operator that his grandfather "just slipped 'cause it was raining today" and that "[i]t's a wet day". Likewise, the transcript of the pretext call records that the applicant said that it was "raining when I took you home that day". In his interview with the police, the applicant said he drove the complainant home at about 4:00 or 5:00pm in the afternoon and that it was "raining that day".
In his evidence, the complainant's grandson, said "it was quite rainy that day, and very dreary weather", and agreed that "it was very overcast, raining and windy" and that his grandfather slipped late in the day because "it was raining today". Similarly, a witness from the community association agreed that he was concerned about the complainant not attending to conduct a scheduled lecture on that day "because it was very rainy and windy" and he thought something may have happened to the complainant. In his evidence, the complainant was asked whether he went to the applicant's flat on 24 March 2015 and whether it was raining on that day. His answer was "[i]t's a bit drizzle, a little bit, yes".
The Long Video gives only a limited insight into the weather at the time that it was filmed. As the complainant went to the applicant's apartment in the morning, about 9:00am, the Long Video may well have been taken in the hour or so that followed. The only indication of the weather given by the Long Video comprises some glimpses of the sky when filming occurred on the balcony. There appears to have been some blue sky evident. The Long Video does not however provide anything approaching a panorama of the sky.
There is no necessary inconsistency between the evidence focused on the weather at the end of the day and the evidence on the Long Video of the weather at what may well have been six or more hours earlier. It is a matter of common knowledge that the weather can change in the course of a day and a blue sky in the morning may be followed by rain in the afternoon. The Crown did not need to call a meteorologist to state that obvious proposition.
I add that I do not interpret the evidence of rain to which I have referred as suggesting that the whole day was rainy, to the exclusion of any fine weather. The focus of all of those statements, with the possible exception of the witness from the community association, was the weather at the end of the day. In any event, to the extent that any of the statements were capable of being understood as speaking more broadly, it was open to the jury to accept them as persuasive only in respect of the weather at the end of the day.
In these circumstances, it was open to the jury to find that the offences occurred on 24 March 2015, the date stated in each count of the indictment.

[8]

The reliability and credibility of the complainant

The applicant's second submission in relation to this ground of appeal was that the jury should have concluded that the complainant was unreliable and lacking in credibility. The applicant relied in particular upon the complainant's denial that he and the applicant had a close relationship when the photographs and emails in evidence suggested the contrary.
However, even if the jury ought to have rejected the complainant's evidence, or at least had a reasonable doubt concerning its reliability and his credibility, the applicant is not entitled to succeed on this ground of appeal as the Crown's case was not founded on any contentious evidence of the complainant.
The complainant gave evidence that he could not recall what happened between the time at which he drank coffee at the applicant's apartment on 24 March 2015 and when he awoke the following day in hospital. That evidence was not in issue. It was not challenged in cross-examination and was not inconsistent with any other evidence at the trial, for example, as to the state in which he appeared in the Long Video and his condition late in the day when he fell and was taken to hospital. Whilst the complainant said in evidence that he had never had sexual relations with the applicant, that evidence could only have limited weight, even if accepted, because of his unawareness of what occurred when the Long Video was filmed.
Instead, the Crown case had to be, and was, firmly based on the evidence contained on the Long Video. Having viewed the Long Video, I consider that it was well open to the jury to conclude that, with the exception of the acts giving rise to Count 10, the sexual activity occurred without the complainant's consent and that the absence of the complainant's consent must have been obvious to the applicant.
In its closing address the Crown asked the jury to consider a number of questions concerning the depiction of the complainant on the Long Video, including was there any indication of consciousness on his part, was he "compos mentis" and was he "with it?". It was open to the jury to answer each of these questions favourably to the Crown. As the Crown put in its closing address, there did not appear to be "any cognition" in the complainant's eyes and he was "largely unmoving, unflinching and almost like a dummy in the arms" of the applicant.
Significantly, the complainant appeared to be in a different state when the acts giving rise to Count 10 occurred. The Long Video depicts him taking an active role in masturbating the applicant. Unsurprisingly, the jury returned a verdict of not guilty on this count. Particularly as the Long Video clearly comprises edited film and the sequence of acts cannot therefore be known, this conclusion concerning Count 10 does not render the jury's guilty verdicts on the remaining counts depicted on the Long Video unsafe. I also add in this context that Dr Gunja's expert evidence was that the effect of Doxylamine can be fluctuating: it may cause a person who has taken it to be "drowsy and less drowsy and more drowsy".
It was consistent with the manner in which the trial was conducted for the jury to use the Long Video as a basis for determining whether there was consent and whether the applicant had knowledge of the absence of consent. Thus in opening, the defence referred to the Long Video as being an aid to determining consent or lack of consent, albeit that "it's only one piece of evidence". In its closing address, the Crown placed heavy emphasis on the depictions of the complainant in the Long Video, suggesting at one point that he was "like a lifeless object". And in the defence closing address, counsel referred to the Crown approach as being "[l]ook at the video, form your own opinion".
I add that the Crown did not confine its case in respect of Counts 2 to 15 to one that the drugged state of the complainant evident on the Long Video resulted from the applicant having administered Restavit to him. Certainly, the Crown maintained throughout the trial that the applicant had done this, but it was careful to leave open the possibility that the jury might be unable to determine that the complainant's drugged appearance was caused in that way. Thus, in its closing address, the Crown referred to the complainant being "intoxicated by some drug or chemical substance", albeit that the Crown said that it was Doxylamine. Later, counsel said that if the complainant was "not intoxicated … by some substance which we say quite plainly [was] Doxylamine he'd have to be blind Freddy not to notice that camera right there in front of him". Again, counsel referred to the complainant being unsteady on his feet and appearing to lose balance which, the Crown suggested, resulted from him being substantially affected by "some substance such that he's not fully conscious". Counsel later referred to the complainant being intoxicated "with a substance" and being affected "by some drug of some kind" which the Crown suggested was Doxylamine.
In the defence closing address, counsel referred to the Crown case being that the complainant was drowsy "under the influence of a drug". In summing up, the trial judge referred to the effect of an "intoxicating substance" and his written directions used the same expression.

[11]

Applicable legal principles

In Nguyen v The Queen [2017] NSWCCA 145 at [34]-[48], I reviewed relevant authorities including Mackenzie v The Queen (1996) 190 CLR 348; [1996] HCA 35, MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53, Jones v The Queen (1997) 191 CLR 439; [1997] HCA 12, R v Markuleski (2001) 52 NSWLR 82; [2001] NSWCCA 290, R v TK (2009) 74 NSWLR 299; [2009] NSWCCA 151, MG v R [2017] NSWCCA 14 and Holloway v R [2017] NSWCCA 17. With the concurrence of Campbell J, I stated the following conclusions concerning the principles applicable to unreasonable verdict grounds of appeal where such grounds are sought to be supported by a contention that there is an inconsistency between verdicts returned at trial (at [48]): "These authorities establish that a complaint of inconsistency between verdicts will fail if the verdicts can be reconciled (see Mackenzie at [34] above), that is, if there is "a logical and reasonable basis for sustaining the differentiation that the jury drew" (see MFA at [42] above). Such a basis may exist if the quality of the complainant's evidence in a case involving sexual offences varied between counts (compare Jones at [36] above). There are many reasons why this may occur. One is that in some respects a complainant may have resorted "to a degree of exaggeration in order to reinforce his or her account" (see Markuleski at [39] above TK at [44] above). Alternatively, the complainant's account of events concerning a particular count may be implausible because of the nature of the events described (see MG at [45] above). Further, if parts of a complainant's evidence are corroborated by other evidence, this may give the jury greater confidence in the reliability of that part of the complainant's evidence as compared to other parts (see MG at [46] above). Such considerations may lead the court to the conclusion that a jury's differential verdicts are the product of its conscientious attention to the trial judge's directions and to the evidence applicable to each count (see Holloway at [47] above)."
As in Marland v R [2017] NSWCCA 277 (see [24]-[25]), it is unnecessary for me to add to these observations that I made in Nguyen.

[12]

Was the acquittal on Count 1 inconsistent with the guilty verdicts?

The applicant submitted to this Court that the only explanation available for the acquittal on Count 1 is that the jury did not accept beyond reasonable doubt that the applicant administered Doxylamine to the complainant and that the jury must therefore have had a reasonable doubt regarding the complainant's reliability and credibility. It followed, the applicant submitted, that the jury should have returned not guilty verdicts on the remaining counts. For the following reasons, I do not accept this submission.
There were a number of bases upon which the jury might not have been satisfied of the applicant's guilt on Count 1 which, if relied on in relation to Count 1, would not have detracted from the Crown's case on the remaining counts and which were therefore consistent with the jury's guilty verdicts on the remaining counts (other than Counts 10 and 16).
First, the jury might not have been satisfied that the Crown proved beyond reasonable doubt that the intoxicating substance named in Count 1 of the indictment, namely Doxylamine, was present in the complainant's body at the time of the alleged offences, or indeed at the time that a sample of his hair was taken in December 2015. The jury might well have been persuaded that the limitations and deficiencies that the defence exposed in the police investigation and expert evidence raised such a doubt. These limitations and deficiencies were relied upon in the defence's closing address.
As explained at [39] above, the guilty verdicts that the jury returned were not dependent upon proof by the Crown that the complainant had Doxylamine in his body. It was open to the jury to be satisfied by its viewing of the Long Video that the complainant was stupefied during, and therefore unable to consent to, the sexual acts. It was unnecessary for the jury to find what drug, if any, was administered, and if so by whom.
Secondly, even if the jury were satisfied that Doxylamine was administered (by means of Restavit tablets), it may not have been satisfied beyond reasonable doubt that the applicant put them in the complainant's coffee rather than the complainant doing so himself. Thus, in the defence's closing address, the applicant's senior counsel put to the jury that even if it concluded that the Long Video showed the complainant drowsy from the influence of a drug, it had to decide whether the applicant gave it to him. Counsel further contended that there was insufficient evidence for the jury to conclude that the applicant put the drug in the complainant's coffee or even that the complainant himself put it in his coffee. Later, counsel emphasised that if Restavit was in the coffee, there was doubt as to how it got there.
Thirdly, the defence posed a question to the jury as to whether, if the applicant put Restavit in the complainant's coffee, his motivation was to render the complainant "totally unconscious" or just to relax him. The jury might therefore have acquitted on Count 1 because it was not satisfied that the applicant had the requisite intent.
Fourthly, through cross-examination of the complainant, the defence raised a question as to whether the complainant had taken medications of his own. In opening the trial for the defence, counsel indicated that his cross-examination of the complainant would indicate "what the defence case is all about". Subsequently, the complainant was asked in cross-examination whether he had obtained medications from a pharmacy in Canberra and about documents suggesting that to have been the case. These documents had been produced on subpoena. The complainant denied that he took any medications and his grandson was called by the Crown to say that, as far as he knew, the complainant did not take any medications. Nevertheless, the trial judge indicated to the jury that the issue was still a live one by saying it is "completely a matter for [it as to] what the facts are" and that "[y]ou've got on the one hand this witness saying he's never seen his grandfather take medication and never been to Canberra and you've got these documents and it's a matter for you".
In these circumstances, the acquittal on Count 1 is not inconsistent with the guilty verdict on other counts. Any of the four reasons that I have identified above may have been the basis for the jury having a reasonable doubt as to the applicant's guilt on Count 1 and, as a consequence, its return of a not guilty verdict on that count. None of the reasons, if acted on by the jury, would have required it to find the applicant not guilty on the counts for which it returned guilty verdicts.

[16]

Offences

The offence of indecent assault contrary to s 61L (since repealed by the Criminal Legislation Amendment (Child Sexual Abuse) Act 2018 (NSW)) was one for which the prescribed maximum penalty was imprisonment for 5 years. No standard non-parole period under the Crimes (Sentencing Procedure) Act 1999 (NSW) was prescribed.
The offence of sexual intercourse without consent contrary to s 61I has a prescribed maximum penalty of 14 years and there is a standard non-parole period of 7 years.
Details of the offences, a short description of the conduct, the sentencing judge's assessment of the objective seriousness of the offending and the indicative sentences are as follows: Count 2 - Indecent assault (kissing complainant) - "towards the lowest end of the range" of objective seriousness - 6 months. Count 3 - Indecent assault (fondling complainant's penis) - "below the mid-range" - 12 months. Count 4 - Indecent assault (touching, licking and sucking of complainant's nipples) - "towards the lower end of the range" - 6 months. Count 5 - Indecent assault (rubbing of offender's nipples on complainant's face and mouth) - "towards the lowest end of the range " - 6 months. Count 6 - Indecent assault (fondling of complainant's penis) - "below the mid-range" - 12 months Count 7 - Sexual intercourse without consent (fellatio of complainant's penis) - "below the mid-range but not towards the lower end of the range" - 3 years 6 months with non-parole period 1 year 8 months. Count 8 - Indecent assault (kissing complainant's armpits) - "towards the lowest end of the range" - 6 months. Count 9 - Indecent assault (rubbing of offender's armpit on complainant's face) - "towards the lowest end of the range" - 6 months. Count 11 - Sexual intercourse without consent (placing offender's penis in complainant's mouth) - "below the mid-range but not towards the lower end of the range - 3 years 6 months with non-parole period 1 year 8 months Count 12 - Sexual intercourse without consent (fellatio - thrusting of offender's penis into complainant's mouth) - "below the mid-range but not towards the lower end of the range" - 3 years 6 months with non-parole period 1 year 8 months. Count 13 - Sexual intercourse without consent (fellatio - thrusting of offender's penis into complainant's mouth) - "below the mid-range but not towards the lower end of the range" - 3 years 6 months with non-parole period 1 year 8 months. Count 14 - Indecent assault (masturbating over complainant's head and ejaculating on his mouth and face) - "towards the middle of the range" - 15 months. Count 15 - Sexual intercourse without consent (fellatio - inserting offender's penis into complainant's closed mouth) - "just below the mid-range" - 4 years with non-parole period 2 years.
It is not necessary to describe the offences in any greater detail than above. The circumstances in which they were committed have been described in the judgment of Macfarlan JA at [6]-[19]. (Of course, the details pertaining to the counts upon which the respondent was acquitted must be ignored.) It is pertinent to note that some of the offending occurred on the balcony of the respondent's home unit, some on a lounge inside and some on the floor of the dining area. The unit itself was described in terms of being modest in size. Aside from it being obvious that the offences occurred in the three locations mentioned, it is not possible to discern from the Long Video the exact sequence in which they were committed. It seemed to be common ground that some of the offending involved a series of acts within particular incidents.
A victim impact statement was tendered. The victim, by then aged 91, wrote of how his life had "changed dramatically since 2015" with the years since being "mentally exhausting and physically draining". His "passion and energy for life [had] diminished" and he had experienced "a series of emotions ranging from fear, guilt, distrust, embarrassment and anger". He described in detail the ways in which these emotions had affected his life but also said he hoped to be able to put the matter behind him and move on with his life. He expressed gratitude to those who had helped "through some of the hardest years of my life". Regrettably, the sentencing judge made no reference to the fact that he had received the victim impact statement, let alone to any of its contents.

[17]

Personal circumstances of the respondent

The respondent was aged 69 at the time of the offending and 72 at the time of sentencing. He was born in Indonesia and moved to China with his family where he obtained a degree in journalism. He migrated to Australia in 1981, and was employed in the hospitality and graphic design industries. He retired at the age of 65, and became involved in charitable and community organisations in the Australian Chinese community. The sentencing judge noted that the respondent was at one stage president or leader of one of these groups.
It was reported that the respondent had received visits from his friends while in custody. One friend had been looking after his unit while he was in custody, in which he intended to live when released. Due to the cost of international phone calls, his communication with siblings in China had been limited. The judge observed that there was nothing to indicate that the respondent had not been able to cope whilst in custody.
The respondent had no criminal antecedents prior to the offending in question. Subsequently, on 7 January 2016, he was sentenced for the offence of using a postal service to harass or offend, contrary to s 471.12 of the Criminal Code 1995 (Cth). This was in relation to the posting of the DVD containing the edited video recording of the offending to the community association of which the complainant was a member (see the judgment of Macfarlan JA at [11]). The respondent was ordered to enter a recognisance with conditions for a period of 5 years under s 20(1)(a) of the Crimes Act 1914 (Cth).
His Honour found the respondent to be a person of good character prior to the offending and that he had good prospects of rehabilitation.
The judge quoted from three judgments of this Court concerned with the relevance of advanced age to the assessment of sentence. He then said, "It seems to me that I need to take into account in the offender's favour his age". He provided no reason for this. He noted that there was no evidence of any health difficulties.
The judge found that there were special circumstances warranting a reduction of the normal ratio between the non-parole period and the head sentence. These were the offender's age and the fact that the respondent had not previously served a sentence of imprisonment.

[18]

Principles relating to Crown appeals

There was no issue between the parties as to the principles that are relevant to the determination of a Crown appeal against sentence. They were sufficiently and helpfully set out in the written submissions of counsel for the Crown as follows: "In order to establish manifest inadequacy, the Crown must establish that the sentence imposed was unreasonable or plainly unjust in a sentencing environment where there is no single 'correct' sentence, and judges at first instance are to be allowed as much flexibility in sentencing as is consonant with the application of proper principle and consistency of approach: R v Dinsdale (2000) 202 CLR 321 at 325; Markarian v The Queen (2005) 228 CLR 357 at [25]; Hili v The Queen (2010) 242 CLR 520 at 538 [58]. A claim of manifest inadequacy is a conclusion and does not depend on establishment of specific error: Dinsdale v R [2000] HCA 54; 202 CLR 321 at [6]. Inadequate sentences give rise to a sense of injustice, not only in those who are the complainants of the crimes in question but also in the general public; they are likely to undermine public confidence in the ability of the courts to play their part in deterring the commission of crimes. The primary purpose of a Crown appeal against sentence is to lay down principles for the governance and guidance of courts having the duty of sentencing convicted persons. In the exercise of its jurisdiction under s 5D of the Criminal Appeal Act 1912, the Court retains a residual discretion to decline to interfere with a sentence even though the sentence is erroneously lenient: Green and Quinn v R (2011) 244 CLR 462 at [1]. The Crown must negate any reason why the residual discretion of this Court not to interfere should be exercised: Green at [36]. The Court may conclude that the inadequacy of the sentence appeared from is so marked, that it amounts to 'an affront to the administration of justice' which risks undermining public confidence in the criminal justice system."

[20]

Ground (i) - Error in the assessment of the objective seriousness of the offences

The Crown took issue with the sentencing judge's assessment that each of the offences were below the middle of the range of objective seriousness, submitting that such an assessment was not open. It had submitted to his Honour, and maintained in this Court, that relevant to the assessment was the level of humiliation involved in recording the assaults and the distribution of the recording; the fact that the complainant was completely helpless due to his impairment and vulnerable due to his age; the presence of some degree of planning; and the period of time during which the offences took place.
The Crown submitted that the erroneous assessment of objective seriousness was in part a result of his Honour appearing to have taken into account as a mitigating factor that there had been a prior sexual relationship between the offender and the victim. Whilst this was a finding strongly opposed by the Crown it was conceded in this Court that it was a finding open to be made.
The judge inquired of the prosecutor what would follow if he made such a finding with the response being that it would be "neutral". In this Court it was submitted that the finding as to the prior relationship was relevant in that it provided a reason why the offences were committed, and it increased the objective seriousness in that it indicated a breach of trust, not only in the commission of the offences but in the sending of the recording to the community association. Reliance was placed upon what was said by Adamson J (with the concurrence of Gleeson JA and Schmidt J) in SC v R [2019] NSWCCA 25, including at [103] when speaking of whether there was a prior relationship between offender and victim that "generalisations about seriousness cannot be made by reference to this factor alone".
The Crown also submitted that the judge was in error in declining to take into account that the victim was vulnerable because of his age. Section 21A(2)(l) of the Crimes (Sentencing Procedure) Act provides that it is an aggravating factor if "the victim was vulnerable … because the victim was … very old". Here, the victim was aged 88. His Honour considered it would be "double-counting" to take this into account because he was taking into account that the victim was vulnerable because of his impaired state. The Crown accepted that this was "perhaps not a significant" issue but it "wasn't to be put to one side".
The Crown also submitted that the judge had failed to make an independent assessment of objective seriousness. He had referred to the findings made about objective seriousness in various cases considered by this Court and "appears to have concluded that these decisions indicated that the objective seriousness of a sexual offence committed against a sleeping or unconscious complainant is in the low range". More generally, the Crown submitted that his Honour "impermissibly attributed significance to the assessments reached in other cases when undertaking the assessment of objective seriousness of the respondent's offences".
The judge did refer to and quote from a number of such cases. This did not culminate in his Honour saying how he applied what he derived from those cases to his assessment of objective seriousness in the present case (as to which see below at [84]). The Crown may well be correct in characterising what his Honour did. Unfortunately, in the absence of reasons the reader is left to speculate. In these circumstances the issue need not be discussed further aside from noting the deficient exposure of reasons.
Mr Bellanto QC on behalf of the respondent submitted that the prior relationship was a relevant matter for the sentencing judge to take into account. There was no error in adopting a generalised approach which Adamson J described in SC v R as erroneous. That case was said to be distinguishable in any event in that it was concerned with an offence committed as an aspect of domestic violence which was not an apt description of the offending in the present case.
Mr Bellanto QC submitted that the judge did consider the victim's age in the course of assessing objective seriousness and took into account vulnerability because of the victim's impaired state. He submitted that there was no failing to take into account a relevant consideration; merely a possible failing to give a consideration appropriate weight.

[21]

Consideration

The significance the sentencing judge gave to his finding that there was a prior sexual relationship between the respondent and the victim is obscure. He quoted from NM v R [2012] NSWCCA 215 in which Macfarlan JA (with the concurrence of McCallum J and Grove AJ) found that the circumstances of the relationship between the offender and the victim in that case warranted a lower assessment of the objective seriousness of sexual assault offences than was made by a sentencing judge. The quotations from this case in the judge's sentencing remarks included Macfarlan JA stating at [58] that a prior sexual relationship between a victim and an offender may, depending upon the particular circumstances of the case, be an important mitigating factor in sentencing for sexual offences. Macfarlan JA proceeded to explain why it was a mitigating factor in that case. Regrettably, the sentencing judge in the present case simply said: "It seems to me in assessing the objective seriousness that I ought to have regard to what the Court of Criminal Appeal has said in relation to victims who have been asleep or unconscious, and also I ought to take into account the sexual relationship and close relationship that I have found existed between the offender and the complainant."
It can only be assumed that the judge took the prior relationship into account as a mitigating factor. Why that was so was not explained. (As indicated earlier, the same can be said about "what the Court of Criminal Appeal has said in relation to victims who have been asleep or unconscious".)
The judge's finding as to a "sexual relationship" was that "some time prior to 24 March 2015, probably in October or November 2014, there was consensual sexual activity between the complainant and the offender". It was certainly a relationship of friendship but it was not found to be one characterised by ongoing sexual activity. Characterising it as a "sexual relationship" was an overstatement.
The prior relationship of friendship served to explain how the offending came to occur. It involved the respondent committing upon his friend a disgraceful series of acts comprising a gross violation of his personal sexual integrity over a significant period of time. It was exacerbated by the humiliation of the victim by the respondent recording the activity and disseminating the recording to others. It was offending that caused the victim intense distress and emotional trauma over an extended period of time. The prior relationship was not a mitigating factor at all.
The judge was also wrong in declining to take into account the victim's vulnerability because of his old age (88) as an aggravating factor. Why the judge thought it might amount to impermissible "double counting" was not explained. However, given that his Honour had regard to vulnerability because of the victim's impaired state, it is difficult to see that this had much, if any, bearing upon the assessment of the objective seriousness of the offences.
The Crown's contention that the judge erred in these two respects should be accepted.

[22]

Ground (ii) - Indicative sentences not adequately reflecting the objective seriousness of the offences

As the Crown recognised, the appeal is in respect of the aggregate sentence. However, it contended that error in the assessment of indicative sentences is a relevant factor in explaining how the judge came to impose an erroneously inadequate aggregate sentence.
The Crown submitted that errors in the assessment of the objective seriousness of the offences led his Honour to assess indicative sentences that failed to reflect the true seriousness of the offences, particularly in relation to each of the sexual assault offences and the indecent assault offences in counts 3, 6 and 14.
The Crown submitted to his Honour that each of the sexual assault offences should be assessed as being in the mid-range of seriousness. It identified features of the indecent assault offences that were relevant to their seriousness but did not contend that a finding within a range should be made.
Mr Bellanto QC made written submissions to his Honour suggesting certain findings as to objective seriousness but seemingly abandoned those submissions at the hearing where he submitted: "[Y]our Honour should sentence on the basis of the offending being the bare bones of the elements of each of the respective offences and that your Honour couldn't take into account aggravating factors and your Honour is left with as I said the bare bones of conduct which we would suggest would lower the criminality involved substantially below midrange."
Sentencing statistics were relied upon in Mr Bellanto QC's written submissions to this Court for the proposition that the indicative sentences were "well within range". The statistics relied upon are not of assistance. In relation to the indecent assault offences, there are 155 cases in the database but they include cases where there were both pleas of guilty and not guilty. Upon further interrogation of the Judicial Information Research System, it is revealed that only 24 of those cases involved a plea of not guilty; thus the vast majority were likely discounted sentences on account of a plea of guilty. The same applies in respect of sexual assault offences (269 cases in all; 109 involving a plea of not guilty).
His Honour found the five sexual assault offences as "below mid-range, but not at the lower end of the range" (counts 7, 11-13) or "just below mid-range" (count 15). He found the indecent assault offence in count 14 to be "towards the middle of the range", the indecent assault offences in counts 3 and 6 to be "below the mid-range" and the balance of the indecent assault offences to be "towards the lowest/lower end of the range".
The Crown (correctly) accepted that findings as to the objective seriousness of offences is generally a matter within the exercise of a sentencing judge's discretion and a matter about which this Court is generally slow to interfere: Mulato v R [2006] NSWCCA 282 at [37] (Spigelman CJ); [46] (Simpson J, as her Honour then was).
The difficulty in this case is that it is inherent in descriptions of levels of objective seriousness that there is necessarily a degree of imprecision. Sentencing judges, and judges of this Court, often use expressions such as "mid-range", "above mid-range" and "below mid-range". But where the latter are used there is a question as to how far "above" or "below" the mid-range the judge has in mind. There is a further question: how wide is the "mid-range"?
Having regard to the nature of the discretion that reposes in a sentencing judge, I am of the view that the assessments made by the judge were open. I am also of the view that most of the indicative sentences are as low as they could possibly be but that they cannot be regarded as beyond the scope of the judge's discretion. The indicative sentence of 15 months for the indecent assault offence in count 14 which was found to be "towards the middle of the range", bearing in mind the maximum penalty of 5 years, is manifestly inadequate. So too is the indicative sentence of 4 years for the sexual assault offence in count 15 which was found to be "just below the mid-range" where the maximum penalty is 14 years and the standard non-parole period is 7 years. The 3 year 6 month sentences for the other sexual assault offences are on the borderline of erroneous inadequacy.
The non-parole periods in respect of the sexual assault offences are particularly low in comparison to their full-terms, less than 50%. I do not think anything turns on this. Nomination of non-parole periods for indicative sentences is required by the legislation where an offence has a prescribed standard non-parole period: Crimes (Sentencing Procedure) Act, s 54B(4). The sexual assault offences are in that category but the indecent assault offences are not. Particularly where there are multiple offences but it is only necessary for some to comply with this requirement, it is hard to see how the assessment of non-parole periods for some of the indicative sentences can influence the application of the totality principle in assessing the appropriate aggregate sentence. The appropriate non-parole period for that sentence can only be determined with the aggregate sentence in mind.

[23]

Ground (iii) - Manifest inadequacy of the aggregate sentence

The Crown contended that the sentencing judge fell into error by "imposing an aggregate sentence and an aggregate non-parole period that fails to appropriately reflect the totality of offending". This was said to be due to the inadequate indicative sentences nominated for each offence, the notional accumulation of the offences, and the way in which the sentencing judge adjusted the ratio between the non-parole and parole period.
The Crown acknowledged that some level of concurrency was appropriate, particularly where the offences were committed in one particular location and comprised a series of acts in a short period of time. However, it was submitted that despite the sentencing judge's reference to the principle of totality, the aggregate sentence of 5 years and 6 months with a non-parole period of 2 years and 9 months did not reflect, to a substantial extent, the totality of the offending involving multiple acts of varying conduct.
The Crown submitted that the non-parole period for the aggregate sentence was significantly less that the standard non-parole period of 7 years for a single offence under s 61I; was only 50% of the aggregate term of 5 years and 6 months; and was only 9 months more than the longest indicative non-parole period (2 years for count 15), meaning that even allowing for a certain level of notional concurrency, it did not sufficiently incorporate the further four counts under s 61I and eight counts under s 61L.
The sentencing judge had adjusted the non-parole period for the aggregate sentence according to his finding of special circumstances on the basis of the respondent's age and first custodial sentence. However, the Crown submitted that because there was no evidence of the respondent suffering medical issues or an inability to cope with imprisonment, the sentencing judge's "departure from the statutory proportion to this extent was unwarranted".
The submissions continued: "The respondent had no prior criminal convictions and was previously of good character. However, he was convicted after trial and maintained his innocence, claiming the sexual intercourse was consensual. He expressed no remorse and had no empathy for the complainant. The respondent's offences warranted stern punishment. The respondent took advantage of the vulnerability of the 88-year-old complainant for his own sexual gratification. The condition of the complainant was such that he was completely helpless. Little force was required to ensure the complainant's compliance. Even so, the respondent used force to penetrate the complainant's mouth and, on one occasion, held his arms down. The recording of the offences and dissemination of the recording to the [community association] was calculated to humiliate the complainant. The discovery of the conduct caused the complainant significant distress."
It was also submitted for the Crown that the aggregate sentence did not reflect the objective criminality of the offending behaviour and failed to promote general and specific deterrence and denunciation of the offences.
I note that although the judge recited the purposes of sentencing set out in s 3A of the Crimes (Sentencing Procedure) Act he said nothing about how he applied them. Nothing was said about the relevance of matters such as general deterrence, denunciation or recognition of the harm done to the victim to the assessment of the sentence. The latter was not specifically raised by the Crown so it should be put aside in the determination of the appeal. But it cannot pass without mention that the judge said nothing about the psychological harm it could easily be assumed was caused to the victim and, as I have previously noted, by not even acknowledging its existence he appears to have completely ignored the victim impact statement. It is relevant to note that his Honour received evidence and submissions on sentence on 21 June 2018 and reserved his decision for in excess of two months. It is difficult in such circumstances to make allowances for inadvertent oversight because of the pressures of time.
Mr Bellanto QC submitted that certain features of the indecent assault offences meant that it was open for the sentencing judge to regard them as having been adequately reflected in the indicative sentences for the sexual assault offences. This was because the offences were assessed to fall below the mid-range level of objective seriousness, the offences were committed over a brief period, and some of the counts overlapped or occurred simultaneously. Similarly, it was submitted that the notional partial accumulation of indicative sentences for the more serious offences was justified by the brevity of offending and because counts 11-15 represent a "continuum of conduct".
It was submitted that the aggregate sentence was appropriate having regard to the offender's advanced age "where each year of a sentence of imprisonment may represent a substantial portion of the remainder of his … life: R v Hunter (1984) 36 SASR 101". (With respect, there is a level of exaggeration here, given the respondent was aged 72 at the time of sentence, the non-parole period will likely result in him being released at the age of 74 and there was no evidence of him being in ill-health.)
It was submitted that the non-parole period set by the sentencing judge was "fair and reasonable" having regard to the special circumstances of the case, and when balanced with the respondent's subjective circumstances including his prior good character, lack of criminal antecedents, good prospects of rehabilitation, first time in custody and the fact that he had spent 671 days on remand.

[25]

Residual discretion

Factors relevant to the discretion as to whether or not this Court should intervene and re-sentence advanced by the Crown included that the Crown did not contribute to the manifest inadequacy of the sentence; there was no significant delay in the filing of the appeal; and although the hearing has been delayed, that was largely for reasons associated with the respondent filing his (unsuccessful) appeal against conviction.
The Crown also submitted that in favour of intervention would be the need to provide assistance to sentencing judges as to how to account for prior sexual relationships between offenders and complainants, how to acknowledge the vulnerability of complainants of advanced age, and the importance of assessing objective seriousness by reference to features of the individual case.
Mr Bellanto QC relied upon delay by the Crown in filing its appeal; the respondent's imminent release on parole; that any increase in sentence would be "so slight as to constitute tinkering"; and "the circumstances of this case are unlikely to arise again".
The Crown acknowledged that the respondent's imminent eligibility for parole on 17 May 2019 is a factor relevant to the discretion: Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49 at [43]. It is not, however, determinative: R v Lachlan [2015] NSWCCA 178; (2015) 252 A Crim R 277 at [91]; R v BA [2014] NSWCCA 148 at [7]. It should not be determinative in this case where there has been no relevant delay by the Crown; in fact if not for the respondent's conviction appeal the Crown's appeal would possibly have been heard late in 2018 or more likely in early in 2019. Thus, the imminence of the respondent's eligibility for release is more attributable to (a) the erroneously short non-parole period imposed; (b) the degree to which the sentence was back-dated to account for pre-sentence custody; and (c) the respondent's pursuit of an unsuccessful appeal against conviction.
There was no evidence placed before the Court by the respondent relevant to the residual discretion or to resentencing. It may only be assumed that the situation remains as it was at the time of the original sentencing where the primary judge observed that there was "nothing to indicate that the offender has not been able to cope whilst in custody" and there was "no evidence of any health difficulties".
The submissions about an increase in sentence only amounting to "tinkering" and the circumstances of the case being unlikely to arise again cannot be accepted. Increasing the sentence by such a degree would not be consistent with a finding that it was manifestly inadequate. The circumstances of this case are, unfortunately, quite likely to arise again. The relevant circumstances are that an assailant took advantage of a vulnerable victim incapable of resisting a gross sexual violation of his body by the commission of a series of serious sexual and indecent assaults. Regrettably, this is not unknown.
The Court should intervene and re-sentence. Allowing the manifestly inadequate sentence imposed in the circumstances of this case would risk undermining public confidence in the administration of criminal justice.

[26]

Re-sentencing

The facts pertaining to each of the offences have been sufficiently described elsewhere in this and Macfarlan JA's judgment. It would be appropriate to maintain the findings of objective seriousness made by the primary judge but I would be more explicit by saying that where offences were found to be "below the middle of the range", they are only "just below". In relation to the indecent assault in count 14, the finding by the judge was generous but if "towards the middle of the range" is understood as very close to it, then it was within the range of the judge's discretion and this Court should not interfere.
The favourable findings by the sentencing judge concerning the respondent's prior good character and good prospects of rehabilitation should be maintained. His age is a factor of some, albeit minimal, relevance where there is no evidence of any ill-health or inability to cope in the custodial environment. It is most relevant in terms of the long period of time in which he has been of prior good character.
A finding of special circumstances should be made and the ratio of non-parole to parole period adjusted, but it should not be anywhere near to the same degree as at first instance. There is a need for a longer than usual period of parole supervision in order to assist the respondent reintegrating into the community and re-establishing his life after having been in custody for a significant period of time.
As an aggregate sentence is proposed, it is necessary to indicate the individual sentences that would otherwise be imposed: Counts 2, 4, 5, 8 and 9: the same as assessed by the primary judge, namely 6 months. Counts 3 and 6: 18 months. Counts 7, 11-13, 15: 5 years with a non-parole period of 3 years 3 months. Count 14: 2 years.
There should be a substantial degree of notional concurrency between the individual sentences but the overall term must reflect the totality of criminality involved in a series of serious sexual and indecent assaults committed over an extended period of time.
The sentence will date from the same date adopted by the primary judge to give credit for pre-sentence custody.

At a glance

Court

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Source

Judgment (28 paragraphs)

Legislation Cited (5)

Cases Cited (37)