Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Stevenson v R [2022] NSWCCA 133 Hearing dates: 4 February 2022 Date of orders: 22 June 2022 Decision date: 22 June 2022 Before: Johnson J at [1]; Davies J at [137]; Bellew J at [138]. Decision: 1. The Applicant is refused leave under Rule 4.15 Supreme Court (Criminal Appeal) Rules 2021 to rely upon Ground 1. 2. Refuse leave to appeal against conviction. 3. Leave is granted to appeal against sentence. 4. The appeal against sentence is allowed. 5. The aggregate sentence imposed at the Newcastle District Court on 11 December 2020 is quashed and, in its place, the Applicant is sentenced to a term of imprisonment for eight years and six months, comprising a non-parole period of five years commencing on 10 March 2020 and expiring on 9 March 2025 with a balance of term of three years and six months commencing on 10 March 2025 and expiring on 9 September 2028; 6. The earliest date upon which the Applicant will be eligible for release on parole is 10 March 2025. Catchwords: CRIMINAL LAW – appeal – appeal against conviction and sentence – aggravated indecent assault and sexual touching of a child between the age of 10 and 16 years – conviction ground asserted that a miscarriage of justice arose as trial Judge did not additionally remind and identify for the jury inconsistencies in the complainant's evidence following the replay of JIRT interview during jury deliberations - no such application made at trial by defence counsel – consideration whether Court of Criminal Appeal should view pre-recorded evidence for the purpose of determining ground of appeal – no forensic purpose established for Court to view JIRT interview – leave to rely on ground refused – sentence ground asserted that aggregate sentence was manifestly excessive by reason of allegedly excessive indicative sentences – significance of "problematic" standard non-parole period for s.61M(2) Crimes Act 1900 offences – absence of standard non-parole period for s.66DB(a) Crimes Act 1900 offence – aspects of indicative sentences resulted in manifestly excessive aggregate sentence – Applicant resentenced Legislation Cited: Children (Criminal Proceedings) Act 1987 Crimes Act 1900 Criminal Appeal Act 1912 Criminal Appeal Rules Criminal Procedure Act 1986 Supreme Court (Criminal Appeal) Rules 2021 Cases Cited: AZ v R [2018] NSWCCA 294 Bray v R [2018] NSWCCA 301 Burke v R [2022] NSWCCA 6 CLC v R [2015] NSWCCA 248 Corby v R [2010] NSWCCA 146 EJDG v R [2012] NSWCCA 251 Evans v R [2017] NSWCCA 281 Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29 Gassy v The Queen (2008) 236 CLR 293; [2008] HCA 18 Gately v The Queen (2007) 232 CLR 208; [2007] HCA 55 Haidari v R (2015) A Crim R 422; [2015] NSWCCA 126 He v Sun (2021) 104 NSWLR 518; [2021] NSWCA 95 Jarrett v R (2014) 86 NSWLR 623; [2014] NSWCCA 140 JM v R (2014) 246 A Crim R 528; [2014] NSWCCA 297 JT v R (2021) 291 A Crim R 47; [2021] NSWCCA 223 Keen v R (2020) 102 NSWLR 178; [2020] NSWCCA 59 Lang (a pseudonym) v R [2021] NSWCCA 212 Lee v R [2020] NSWCCA 244 Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 Noonan v R [2021] NSWCCA 35 Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221 Papakosmas v The Queen (1999) 196 CLR 297; [1999] HCA 37 Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12 R v CTG [2017] NSWCCA 163 R v Gavel (2014) 239 A Crim R 469; [2014] NSWCCA 56 R v Moussa (2001) 125 A Crim R 505; [2001] NSWCCA 427 R v NZ (2005) 63 NSWLR 628; [2005] NSWCCA 278 R v Wilson (2005) 62 NSWLR 346; [2005] NSWCCA 20 Roach v R (2019) 344 FLR 429; [2019] NSWCCA 160 Scaysbrook v R [2022] NSWCCA 69 Scott v R [2020] NSWCCA 81 SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13 TKWJ v The Queen (2002) 212 CLR 124; [2002] HCA 46 Vaughan v R [2020] NSWCCA 3 Xie v R (2021) ALR 371; [2021] NSWCCA 1 Texts Cited: --- Category: Principal judgment Parties: Owen Stevenson (a pseudonym) (Applicant) Regina (Respondent) Representation: Counsel: Mr GD Wendler (Applicant) Ms C Curtis (Respondent) Solicitors: Monica McKenzie Solicitors (Applicant) Office of the Director of Public Prosecutions (Respondent) File Number(s): 2019/73025 Publication restriction: --- Decision under appeal Court or tribunal: District Court of New South Wales Jurisdiction: --- Citation: --- Date of Decision: 11 December 2020 Before: Acting Judge Berman SC File Number(s): 2019/73025 Judgment 1. JOHNSON J: By Notice of Appeal filed on 5 July 2021, the Applicant, Owen Stevenson (a pseudonym), seeks leave to appeal with respect to conviction and sentence following his trial before Acting Judge Berman SC and a jury at the Newcastle District Court upon three counts of aggravated indecent assault under s.61M(2) Crimes Act 1900 and one count of sexual touching of a child between the age of 10 and 16 years under s.66DB(a) Crimes Act 1900. 2. The complainant, James (which is not his real name), is entitled to protection against identification by operation of s.578A Crimes Act 1900 and s.15A Children (Criminal Proceedings) Act 1987. As identification of the Applicant may tend to identify James, the Applicant is also referred to by a pseudonym in this judgment. The Aggregate Sentence and Indicative Sentences 1. On 11 December 2020, the Applicant was sentenced to an aggregate term of imprisonment for 10 years comprising a non-parole period of six years commencing on 10 March 2020 and expiring on 9 March 2026, with a balance of term of four years expiring on 9 March 2030. 2. In accordance with the requirements for aggregate sentencing, his Honour nominated the following indicative sentences: Count Offence Maximum Penalty and Standard Non-Parole Period (SNPP) Indicative Sentence 1 Between 31 December 2017 and 22 December 2018, assault with act of indecency on a person aged under 16 years - s.61M(2) Crimes Act 1900 Maximum Penalty: 10 years' imprisonment Imprisonment for six years with a non-parole period of three years SNPP: Eight years' imprisonment 2 Between 31 December 2017 and 22 December 2018, assault with act of indecency on a person aged under 16 years - s.61M(2) Crimes Act 1900 Maximum Penalty: 10 years' imprisonment Imprisonment for six years with a non-parole period of three years SNPP: Eight years' imprisonment 3 Between 31 December 2017 and 22 December 2018, assault with act of indecency on a person aged under 16 years - s.61M(2) Crimes Act 1900 Maximum Penalty: 10 years' imprisonment Imprisonment for seven years with a non-parole period of three years and six months SNPP: Eight years' imprisonment 4 Between 25 January 2019 and 29 January 2019, sexual touching of a child between the ages of 10 and 16 years - s.66DB(a) Crimes Act 1900 Maximum penalty: 10 years' imprisonment Imprisonment for eight years No SNPP Grounds of Appeal 1. The Applicant relies upon the following grounds of appeal: 1. Ground 1 (conviction appeal) – that there occurred a significant imbalance in the trial resulting in a fundamental irregularity and consequent miscarriage of justice because the trial Judge, although reminding the jury not to give the complainant's (James) evidence-in-chief greater weight because they were to see and hear it twice, did not additionally remind and identify for the jury the inconsistencies in the complainant's (James) evidence following the replaying of the complainant's (James) Joint Investigation Response Team ("JIRT") interview. 2. Ground 2 (sentence appeal) – that the aggregate sentence was manifestly excessive by reason of the manifest excessiveness of the indicative sentences. Overview of the Trial 1. Given the grounds of appeal, it is sufficient to outline the charged offences, and the course of the trial, in the following way. 2. In the period 2017 to 2019, the Applicant (who was born in October 1980) was living in a de facto same-sex relationship with his partner at a house in rural New South Wales. The Applicant has a son (born in December 2010) from a previous heterosexual relationship. The son, Michael (which is not his real name), would stay with the Applicant every second week. 3. James was born in December 2008. James' mother was a good friend of the Applicant and the Applicant's partner. 4. James used to visit the Applicant's house to play with Michael. James and Michael were close in age and were good friends. The Charged Offences 1. The charged offences arose out of two occasions when James stayed overnight at the Applicant's house, the first in the second half of 2018 and the second on the Australia Day weekend of 2019. 2. On the first occasion, James (then aged nine years) was sleeping in the spare bedroom in the upstairs area of the house. He was in bed, but was unable to sleep as he was scared. The Applicant (then aged 38 years) offered to lie down in the bed with him and James agreed. James alleged that the Applicant then touched James' penis and masturbated him (Count 1). The Applicant then forced James to touch the Applicant's penis and to masturbate him (Count 2). The Applicant then put a liquid between James' legs and rubbed his penis backwards and forwards between James' legs (Count 3). 3. The second incident occurred over the Australia Day weekend in January 2019. On that occasion, James (then aged 10 years and one month) stayed at the Applicant's house over two nights. On the first night, all the occupants of the household were sleeping downstairs on mattresses or lounge cushions as it was hot and there was air conditioning downstairs. 4. During the night, after Michael had gone to sleep, the Applicant woke James. The Applicant said to James "Do you want to play around like we did before?". James did not know what he meant, but said "I don't know, but OK". James took off his pants at the Applicant's request and the Applicant straddled him, put his penis between James' legs and "went up and down" (Count 4). It was the Crown case that the Applicant said "You know you're a good boy. Do you want me to put it in your bum?" to which James replied "No". The Applicant then said "Aw, shut up, just do it" and James replied "No, I don't want to do this anymore". The Applicant said "Look up" and the Applicant's partner dropped some liquid onto James' face. James started to cry and was scared. 5. James complained to his mother immediately upon his return home after the Australia Day 2019 weekend. James' mother called the Applicant and accused him of interfering with her son. The Applicant denied the allegations and hung up the phone. 6. The matters were reported to police and, on 6 March 2019, the Applicant attended a police station where he participated in an electronically recorded interview in which he denied the offences. The Applicant was charged with the offences. The Defence Case 1. The Applicant gave evidence in his case at trial. He denied the allegations. He also said that on the Australia Day weekend, James appeared to have had a nightmare. He was calling out in his sleep. The Applicant posited the theory that James might have become confused between dreaming and reality. He also said that he had raised concerns with James' mother about her lifestyle, and her consequent ability to care for her son. On the basis of this evidence, another theory posited was that James' mother had put her son up to making the allegations in retaliation for the offence caused to her by this conversation. The Course of the Trial 1. The trial commenced on 21 September 2020 at the Newcastle District Court. In accordance with s.306U Criminal Procedure Act 1986, the evidence-in-chief of each of James and Michael was given by playing the recorded JIRT interview conducted with each of them. The video recording of James' JIRT interview conducted on 22 February 2019 (MFI2) and the video recording of Michael's JIRT interview of 1 March 2019 (MFI5) were played to the jury. 2. On 17 July 2020, pre-recorded evidence hearings involving James and Michael had been conducted before her Honour Judge Traill at the Newcastle District Court pursuant to Schedule 2, Part 29, Criminal Procedure Act 1986. Edited versions of the videos of the pre-recorded evidence hearings were played for the jury (MFI4 – James' evidence; MFI6 - Michael's evidence). 3. Michael's mother gave evidence at the trial on 22 September 2020 (T19-29). Other witnesses were called on that day including the Applicant's partner (T42-70), James' mother (T73-100), Senior Constable Nicole Davidson (T101-107) and Detective Senior Constable Matthew Davis (T108-112). 4. The Crown case closed on the afternoon of 22 September 2020. The Applicant commenced to give evidence at 3.45 pm on that day (T113-119) and his evidence continued on 23 September 2020 (T129-155). 5. The defence case was closed and, soon after, the Crown delivered a closing address to the jury (T158-166). Immediately thereafter, trial counsel for the Applicant made his closing address to the jury (T166-178). 6. Thereafter, the jury retired for the lunch break. After lunch, the trial Judge summed up to the jury with the jury retiring to consider its verdicts at 2.35 pm on 23 September 2020, the third day of the trial. 7. No challenge is made in this Court to any part of the trial Judge's summing up, which included a direction under s.293A Criminal Procedure Act 1989 concerning James' evidence and a summary of the closing addresses of the Crown and defence counsel. 8. Shortly after retiring to consider verdicts, the jury sent a note to the trial Judge requesting the discs of James' JIRT interview and pre-recorded evidence. After receiving the jury note, the trial Judge discussed the request with counsel and the jury returned to Court. 9. His Honour gave the jury the following further direction, in which, in accordance with R v NZ (2005) 63 NSWLR 628; [2005] NSWCCA 278, the jury were told that the recordings needed to be played in open court in the presence of the parties (SU31-32): "HIS HONOUR: Ladies and gentlemen, I just got you in to deal with this note you have sent me. I will read out the note so you all know what we are talking about. 'We all request the discs 1 and 2 of [James] please.' I am not going to explain why this is but just accept from me that it is: I cannot do that. If you want to see the recording of the interview, the only way that can happen is if you are in court and we are all here and we play you that recording in its entirety and the same goes for the recording of [James'] evidence that you saw on Monday. If you want to see it, the only way that can happen again is if we are all in court and we play that in its entirety. I do not say that to discourage you. If you want to do that then we will organise it but I cannot do what you have asked me, which is to give you the discs to play in the jury room. So have a chat amongst yourself at some convenient time and we will do whatever you want. If you still want to have them replayed in that manner we will do it. It will not finish today, of course, but we will do it tomorrow. If you do not want to you do not have to. If you do not want to watch them being replayed you do not have to, okay? We will wait for you to tell us if you want to see them and we will organise it. Thank you. JURY RETIRED TO FURTHER CONSIDER ITS VERDICTS AT 3.18PM HIS HONOUR: Right, if I don't hear anything else from the jury I'll see you all at 5 to 4." 1. After a short adjournment, his Honour returned to Court and the following ensued (SU32-33) (emphasis added): "HIS HONOUR: The jury have indicated they want to see the discs so we will do that first thing tomorrow. MFI #12 JURY NOTE DATED 23/09/20 NOTE FROM JURY IN RELATION TO WISHING TO HAVE DISCS 1 AND 2 PLAYED OF THE COMPLAINANT'S INTERVIEW AND PRE-RECORDED EVIDENCE HIS HONOUR: Could we bring the jury in please? JURY RETURNED TO COURT AT 4.00PM HIS HONOUR: All right, members of the jury, you have indicated you want to see the discs. We will see them first thing tomorrow. Do you want to come in earlier and start earlier? We could start at 9.30 if you want. Has anyone got a problem with that? FOREPERSON: 9.30. HIS HONOUR: 9.30 it is, okay, so we will start playing the discs to you then. When we do play the discs I want you to bear something in mind. Usually when people give evidence the jurors only see that once. You are not going to see [the Applicant] give evidence again because it is not video recorded, and so I want you to guard against placing over-emphasis on the prosecution case because you are seeing the most important witness in the prosecution case twice. So just bear that in mind. Do not be subconsciously influenced by that evidence. Do not give it greater weight than you should because you are seeing it twice. Do you see what I am saying? As I say, you are not going to see [the Applicant's] evidence again but you are going to see the most important witness for the prosecution again. So please guard against giving it over-emphasis because of that reason. Just remember that ordinarily you only see a witness give evidence once. Right, you have said you want to go home now so I will allow that to happen." 1. His Honour then gave the jury usual directions before the jury separated for the day. 2. On 24 September 2020, the fourth day of the trial, the jury returned to the courtroom at 9.37 am and the trial Judge gave the jury the following additional explanation and direction (SU37-38) (emphasis added): "HIS HONOUR: Right, members of the jury, these videos together take two hours and seven minutes. The first one goes for 55 minutes so we might have a five minute break after that and then we will bring you back in for the second one, okay? Just remember what I said to you yesterday, please. Ordinarily when witnesses come into the witness box and they give their evidence the jury only have the opportunity to see them once. [The Applicant's] evidence was not recorded so you will not be seeing his evidence again. So just bear that in mind. Do not give too much weight to the evidence of [James] because you are seeing it twice. MFI 2 PLAYED TO COURT I wondered, members of the jury, while the video was being played whether maybe you want a bit longer than five minutes if you want to talk about it for a while, so we will do it this way. You go to the jury room. We will come back in five minutes unless you say to the officer, 'No, we'd like a bit longer,' okay? You are in charge, but if we do not hear from you we will see you in five minutes' time, okay? JURY RETIRED TO FURTHER CONSIDER ITS VERDICTS AT 10.33PM HIS HONOUR: I'll adjourn for five minutes unless we hear something else. SHORT ADJOURNMENT HIS HONOUR: We'll have the jury, please. They have decided not to see the second disc. Right, just let them know that's fine and we'll wait to hear from them. MFI #13 JURY NOTE DATED 24/09/20 NOTE FROM JURY IN RELATION TO NO LONGER WISHING TO VIEW COMPLAINANT'S PRE-RECORDED EVIDENCE SHORT ADJOURNMENT." 1. At 12.08 pm, the jury returned verdicts of guilty on each of the four counts. Affidavit of Trial Defence Counsel 1. In this Court, Mr Wendler, counsel for the Applicant, read without objection, the affidavit of Robert Noel Hussey sworn 31 January 2022. Mr Hussey was trial counsel for the Applicant. 2. In the affidavit, Mr Hussey explained why no application was made to the trial Judge for any direction concerning the jury viewing James' JIRT interview whilst deliberating. Mr Hussey said: "2 I appeared as [the Applicant's] counsel in his trial and sentence proceedings that were before the Newcastle District Court in September and December 2020. 3 I have been asked by Ms Monica McKenzie, solicitor, to explain why I did not make an application for the trial judge - either before or after the replaying of the complainant's JIRT video - to provide additional instructions to the jury reminding them of inconsistencies in the complainant's evidence, so as to balance the forensic impact of having the jury see and hear the complainant's JIRT video interview for a second time. 4 In making this affidavit, I have refreshed my memory from the transcript of the summing up of His Honour Judge Berman SC through to the return of verdicts by the jury. I otherwise rely on my memory of the trial. 5 My memory of the trial is that I had no cause for concern as to His Honour's summing up and directions to the jury. This includes the directions that His Honour gave to the jury both prior to, and after, the replaying of the complainant's JIRT video. 6 There was a short period of time from closing addresses through to the request to replay the complainant's JIRT video. I remember that I had made mention of the complainant's body language and demeanour in his JIRT interview during my closing address to the jury. I thought that perhaps this may have been the reason why the jury wanted to watch the complainant's JIRT video again. 7 I recall making mention of numerous inconsistencies referable to the complainant's evidence during my closing address. His Honour then repeated these inconsistencies when he summed up my closing address. Given the short period of time that had elapsed from the completion of His Honour's summing up and directions, through to the request to rewatch the complainant's JIRT video, I was of the view that the arguments made in my closing address - which were repeated by His Honour - were still fresh in the jury's mind, both before and after the playing of the complainant's JIRT interview. 8 When the jury made the request to replay the complainant's JIRT video, I was aware of the decision in R v NZ [2005] NSWCCA 278 and the preferred procedure outlined by the Court in paragraph [210] of that case. I was familiar with the preferred procedure when there is a request by a jury to rewatch a child witnesses' video recorded evidence, as I had both read the case and had encountered a similar request in a prior child sexual assault trial that I appeared in the previous year (2019). 9 I had no cause for concern nor any disquiet with the way in which His Honour responded to the jury note and the directions that he gave to the jury both before and after the replaying of the JIRT video. I was satisfied that His Honour was both familiar with, and had complied with, the suggested procedure in R v NZ, given the way he directed the jury. Due to the atmosphere of this trial - i.e. the short period of time that had elapsed from the conclusion of my closing address through to the replaying of the JIRT video - there was no need in my view for any application to be made for His Honour to repeat what I said were inconsistencies in the complainant's evidence, in circumstances where I thought those arguments were still very fresh in the jury's mind." 1. Decisions of this Court have considered the circumstances in which an affidavit of trial counsel should be received on appeal to explain why objection was not taken at trial, or a particular direction sought at trial where leave is required under Rule 4 Criminal Appeal Rules, now Rule 4.15 Supreme Court (Criminal Appeal) Rules 2021: R v Moussa (2001) 125 A Crim R 505; [2001] NSWCCA 427 at [56]-[63]; Haidari v R (2015) A Crim R 422; [2015] NSWCCA 126 at [44]-[47]; Keen v R (2020) 102 NSWLR 178; [2020] NSWCCA 59 at [85]-[95]. 2. At times, affidavits have been received where a ground of appeal asserts incompetent representation by trial defence counsel, although this Court has emphasised that the focus of attention in determining an incompetent counsel ground should be the objective features of the trial process: Roach v R (2019) 344 FLR 429; [2019] NSWCCA 160 at [153]-[165] (and the authorities there considered). 3. The Applicant does not assert incompetence on the part of trial counsel. The ground of appeal contends that a miscarriage of justice occurred in the circumstances of this case. 4. Here, the affidavit of trial counsel was read without objection from the Crown. The affidavit assists this Court to understand why trial counsel did not seek any further direction in this case. As it happens, counsel's approach at trial is entirely understandable. 5. It remains a matter for the Court to determine whether a miscarriage of justice is demonstrated in this case. Should This Court View James' JIRT Interview and Pre-Recorded Evidence for the Purpose of Determining the Appeal? 1. An issue arose at the hearing of the appeal as to whether the Court should view the recordings of James' JIRT interview and his pre-recorded evidence. The Crown acknowledged that it was a matter for the Court to determine whether this step should be taken, but submitted that the Court should view the JIRT interview only as this was the sole recording viewed again by the jury whilst deliberating. 2. Mr Wendler submitted that the Court should view both James' JIRT interview and his pre-recorded evidence. 3. It remains a matter for the Court to determine whether viewing the recordings of the JIRT interview and the pre-recorded evidence is both necessary and appropriate for the purpose of determining the ground of appeal. 4. Where this issue has arisen for consideration, the High Court of Australia has expressed concern that the viewing by an appeal court of a recording of an interview or evidence may give rise to imbalance, as the appeal court would not be viewing the evidence of other witnesses: SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13 at [26]-[35], [116]. It was said that, at the least, it is necessary for an applicant's counsel to identify the forensic purpose to be served by having the appeal court view the video recording: SKA v The Queen at [116]. 5. In Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12, the full High Court rejected a submission by the Crown that the Court should view the video recording of the complainant's evidence as played at the trial for the purpose of determining an unreasonable verdict ground of appeal. The Court said at [36]: "The position maintained by the respondent is not one that should generally be adopted by courts of criminal appeal. In SKA [(2011) 243 CLR 400 at 410-412 [27]-[35]], French CJ, Gummow and Kiefel JJ rejected the suggestion that the mere availability of a video-recording of a witness' evidence at trial meant that the proper discharge of the function of the appellate court, to make its independent assessment of the evidence, necessitated a viewing of the recording. There may be cases where there is something particular in the video-recording that is apt to affect an appellate court's assessment of the evidence, which can only be discerned visually or by sound. In such cases, there will be a real forensic purpose to the appellate court's examination of the video-recording. But such cases will be exceptional, and ordinarily it would be expected that the forensic purpose that justifies such a course will be adopted by the parties, rather than upon independent scrutiny by the members of the court [SKA v The Queen (2011) 243 CLR 400 at 410-411 [30]-[31]; see also at 432-433 [116] per Crennan J]." 1. By way of further emphasis of the need for caution before an appeal court views a video recording of a witness' evidence at trial, the Court noted in Pell v The Queen (at [37]) that the assessment of the credibility of a witness by the jury, on the basis of what it has seen and heard of a witness in the context of the trial, is within the province of the jury as representatives of the community, and that the availability of an appeal does not involve the substitution of trial by an appeal court for trial by a jury. 2. The statements made by the High Court in SKA v The Queen and Pell v The Queen were made in the context of appeals involving unreasonable verdict grounds. The ground of appeal against conviction in the present case does not contend that the verdicts of the jury were unreasonable. Rather, it is argued that unfairness or imbalance arose from the trial Judge's approach in dealing with the jury request, made during deliberations, to view again James' JIRT interview. 3. In my view, the considerations raised in SKA v The Queen and Pell v The Queen are relevant to the present case as well. 4. A real forensic purpose must be demonstrated for the Court to view the recording: CLC v R [2015] NSWCCA 248 at [74]-[77]; Scott v R [2020] NSWCCA 81 at [50]-[54]. The Court should be conscious of the ramifications for the practical workload of this Court if the viewing of recordings of evidence became a common practice for this Court: CLC v R at [78], [93]-[95], [101]; AZ v R [2018] NSWCCA 294 at [142]. 5. To view James' JIRT interview and, as the Applicant contends, his pre-recorded evidence as well, would involve this Court viewing part of the evidence which was before the jury. The jury had the JIRT interview and pre-recorded interview of Michael as well as having seen and heard evidence of witnesses including, importantly, the Applicant. 6. Given the application that was made to this Court by the parties, I have given careful consideration to the request that the Court view James' JIRT interview and his pre-recorded evidence. I am satisfied that this Court can consider and determine the first ground of appeal by reference to the documentary record of the trial, including transcripts of all evidence and submissions made at the trial, without viewing the recordings. The submissions of counsel prepared for the purpose of the appeal have provided additional assistance in understanding the content of James' JIRT interview in the context of the trial. 7. In reaching this view, I have kept in mind that the members of the Court viewed the recording of the complainant's JIRT interview for the purpose of determining the appeal in R v NZ. The Court (of which I was a member) accepted that this step was necessary to determine that appeal. Of course, R v NZ preceded the decisions in SKA v The Queen and Pell v The Queen, where the High Court expressed considerable caution about this step, and emphasised the need for an applicant's counsel to identify the real forensic purpose to be served by having an appeal court view the relevant video recording. 8. I am not persuaded that a real forensic purpose has been established for the Court to view James' JIRT interview, let alone his pre-recorded evidence, for the purpose of considering and determining the conviction ground of appeal. Ground 1 – Appeal Against Conviction Based Upon Claimed Irregularity and Miscarriage of Justice Arising from the Jury Seeing and Hearing James' JIRT Interview Without Additional Directions Being Given by the Trial Judge Submissions for the Applicant 1. Mr Wendler acknowledged that the Applicant required leave under Rule 4.15 Supreme Court (Criminal Appeal) Rules 2021 to rely upon the conviction ground of appeal in the absence of any application made at trial for the direction now relied upon in this Court. 2. It was submitted that a miscarriage of justice had occurred in this case as the trial Judge had not reminded the jury of aspects of the defence closing address in which mention was made of specific areas of inconsistency in James' evidence. It was argued that the approach adopted by the trial Judge had not complied with what was said by this Court in R v NZ at [210]. 3. Counsel submitted that what occurred in this trial did not maintain a proper balance between both the prosecution and the defence cases, so as to infringe what was said by the High Court in Gassy v The Queen (2008) 236 CLR 293; [2008] HCA 18. 4. With respect to the requirement for leave under Rule 4.15, given the failure of trial counsel to request the directions now relied upon, Mr Wendler submitted that application of Rule 4.15 cannot operate to the detriment of the Applicant if an injustice will be visited upon him: Papakosmas v The Queen (1999) 196 CLR 297; [1999] HCA 37 at [72]; R v Wilson (2005) 62 NSWLR 346; [2005] NSWCCA 20 at [20]. 5. It was submitted that the failure to remind the jury of defence submissions concerning the reliability of James' evidence, following the replaying of the JIRT interview, was vitally important to the preservation of balance in the trial. Despite no request being made by trial counsel for further directions, it was submitted that Rule 4.15 should not disentitle the Applicant from relying on this ground in this Court. Submissions for the Crown 1. The Crown submitted that this had been a short trial, where the trial Judge reminded the jury in the summing up of the suggested inconsistencies in James' account, and with that having occurred on the same day when the jury requested to view the recording again. The absence of any application for further directions, it was submitted, supported a conclusion that there was no injustice to the Applicant, nor had a miscarriage of justice been demonstrated in this case. In this respect, the Crown pointed to the affidavit of Mr Hussey which supported a conclusion that there was no miscarriage of justice in this case. 2. The Crown submitted that the decision in R v NZ did not require the trial Judge to do any more than was done in the present case. 3. The Crown relied on Gately v The Queen (2007) 232 CLR 208; [2007] HCA 55 in support of the argument that no miscarriage of justice had occurred in the present case. In addition, the Crown submitted that recent decisions have confirmed that the procedures described in R v NZ and Gately v The Queen are not inflexible, and that even where the preferred procedure is not adhered to, it does not follow that there would have been a miscarriage of justice: Jarrett v R (2014) 86 NSWLR 623; [2014] NSWCCA 140; JT v R (2021) 291 A Crim R 47; [2021] NSWCCA 223. 4. The Crown submitted that neither the High Court nor this Court has suggested that a trial Judge must invariably remind the jury of other evidence in a case where a complainant's recorded interview was replayed. Whether or not such a course should be undertaken, it was submitted, is a matter within the discretion of the trial Judge, taking into account the particular circumstances of the trial. Further, it was submitted that the failure to take such a course does not amount to a fundamental irregularity. 5. It was submitted that the trial Judge had dealt with James' interview consistently with the procedures laid down by the High Court and this Court. This was not a case that required the trial Judge to draw the jury's attention to other evidence in the trial. In this respect, the Crown relied upon a number of features of the trial itself to support a conclusion that no miscarriage of justice had occurred. 6. The Crown submitted that leave to rely upon the first ground of appeal should be refused under Rule 4.15. Decision on First Ground of Appeal 1. The conviction ground of appeal contends that there was a miscarriage of justice under the third limb of s.6(1) Criminal Appeal Act 1912: Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29 at [9], [14]; Xie v R (2021) ALR 371; [2021] NSWCCA 1 at [394]. The Applicant has the burden of proving that there has been a miscarriage of justice: TKWJ v The Queen (2002) 212 CLR 124; [2002] HCA 46 at [63]. 2. In considering this ground of appeal, it is helpful to keep in mind what was said in R v NZ with respect to the replaying of a video recording of a complainant's interview or evidence. In R v NZ at [210], Howie J and myself (Wood CJ at CL and Hunt AJA agreeing) said under the heading "The preferred procedure": "210 We should by now have made clear our view that this Court should not lay down any rule of practice or procedure to be followed in every case where the evidence in chief of a witness has been given by the playing of a videotape. However, we can summarise our views as to the procedure to be followed generally: (a) The videotape evidence of a Crown witness should not become an exhibit and, therefore, should not be sent with the exhibits to the jury on retirement; (b) Any transcript given to the jury under s 15A should be recovered from the jury after evidence of the witness has been completed; (c) It is for the discretion of the trial judge how a jury request to be reminded of the evidence in chief of the witness should be addressed; (d) It would be inappropriate for the judge to question the jury as to the purpose for which they wish to have the tape replayed. (e) If the tape is to be replayed or the transcript of the tape provided to the jury, the judge should caution the jury about their approach to that evidence when the tape is being replayed to them or the transcript of the tape returned to them in terms to the effect that 'because they are hearing the evidence in chief of the complainant repeated a second time and well after all the other evidence, they should guard against the risk of giving it disproportionate weight simply for that reason and should bear well in mind the other evidence in the case'; (f) The judge should consider whether the jury should be reminded of any other evidence, for example the cross-examination of the witness at the time that the tape is replayed or sent to the jury room, if that step is considered to be appropriate. But other than expressing those views, we believe that the request by a jury for the replaying of the tape should be dealt with by the judge in the exercise of discretion bearing in mind the need for fairness and balance in addressing that request." 1. It will be apparent that the trial Judge complied with what was said in R v NZ at [210](e) (see [26], [28] above). 2. Mr Wendler relies upon the proposition from R v NZ at [210](f) (see [62] above). It must be kept in mind that what is said in that paragraph is qualified by the words "if that step is considered to be appropriate". At all times, the issue remains one for the exercise of discretion of the trial Judge. This is not an inflexible or mandatory requirement for trial Judges to apply, irrespective of the circumstances, where the jury requests the replaying of a video-recorded interview or evidence of a complainant. 3. The fact that a discretionary decision is to be made by the trial Judge in such circumstances was emphasised in R v NZ at [199]-[202]. As Spigelman CJ observed in R v NZ at [4], the common law recognises that a right to a fair trial operates not only in favour of the accused person, but also in favour of the community represented by the Crown. The need for fairness and balance on the part of the trial Judge were emphasised in the judgment of Howie J and myself in R v NZ at [169]-[176]. 4. I do not consider that the Applicant is assisted by anything said in Gassy v The Queen, where the majority held that the directions of the trial Judge were sufficiently unbalanced as to give rise to a miscarriage of justice. 5. As Basten JA (R A Hulme J agreeing) recognised in Jarrett v R at [71]-[73] (and repeated in Lang (a pseudonym) v R [2021] NSWCCA 212 at [7]), the joint judgment of Howie J and myself in R v NZ did not purport to lay down inflexible or prescriptive rules, with the question whether a miscarriage of justice has been demonstrated requiring an assessment of the circumstances of the case and the trial Judge's discretionary approach in that context. Bathurst CJ (Rothman and Garling JJ agreeing) also emphasised the non-prescriptive nature of what was said in R v NZ in JT v R at [82]-[93]. 6. I accept the Crown submission that the circumstances of this trial operate strongly against a conclusion that there was injustice to the Applicant, let alone a miscarriage of justice. 7. First, this was a short trial. The trial commenced on Monday, 21 September 2020 with evidence continuing on 22 and 23 September 2020. Immediately after the defence case, closing addresses were made on behalf of the Crown and the Applicant on the morning of 23 September 2020. The trial Judge summed up to the jury after lunch on that day. In the course of the summing up, his Honour summarised the closing address of defence counsel, including express mention of each of the suggested inconsistencies to which reference had been made earlier that day in the defence closing address (SU25). 8. Soon after retiring to consider verdicts, the jury made the request to view the recordings with the request being confined, in the end, to viewing James' JIRT interview. All of this took place at a time when the defence closing address, and his Honour's summary of the defence closing address, would have been completely fresh in the minds of the jurors. 9. Secondly, trial defence counsel did not seek any further direction from the trial Judge. The affidavit of Mr Hussey explains why he took this course. What he said fortifies a conclusion that some further direction was not required in the atmosphere of the trial. The position adopted by trial defence counsel was understandable. 10. Thirdly, the jury had a transcript of the entirety of the evidence in the trial, with the exception of the final part of the Applicant's evidence as it was not available when deliberations commenced. The jury therefore had the transcript of James' cross-examination at the pre-recorded evidence hearing together with the transcript of his mother's evidence, with those transcripts being pertinent to issues in the trial. 11. Fourthly, whilst the Applicant gave evidence at trial, the principal approach of trial defence counsel was to attack James' credibility based, in large part, on the answers he had given in his JIRT interview. They had been the subject of submissions in the defence closing address which were repeated by the trial Judge in the summing up that day. Defence counsel relied on these suggested inconsistencies to challenge aspects of James' evidence. In this way, James' interview was just as much a part of the defence case as the Crown case, which serves to explain why trial defence counsel did not regard any further direction as being necessary after the recording was played again. 12. Fifthly, the direction under s.293A Criminal Procedure Act 1986 was not opposed and was given in terms which had been considered by trial defence counsel before it was delivered. Following that direction, as noted earlier, the trial Judge reminded the jury about the submissions made by the Crown and by defence counsel. This was the last thing the jury heard before retiring to consider verdicts. The s.293A direction did not create an imbalance requiring the trial Judge to remind the jury of other evidence. 13. Sixthly, no inference which assists the Applicant arises from the timing of the verdicts. As noted earlier, the jury retired to consider its verdicts at 2.35 pm on 23 September 2020 and were sent home at 4.00 pm. The interview was played at 9.30 am on 24 September 2020, with the jury continuing deliberations from 10.33 am until verdicts were delivered at 12.08 pm. Accordingly, the jury deliberated for approximately an hour-and-a-half both before and after the video of the JIRT interview was played again during deliberations. 14. The Applicant has not demonstrated that a fundamental irregularity occurred in the trial, let alone that a miscarriage of justice resulted. The trial Judge gave directions in accordance with R v NZ and was not asked to say more to the jury by way of directions. No error has been demonstrated in his Honour's approach. 15. In Scaysbrook v R [2022] NSWCCA 69, Bellew J (Lonergan and Ierace JJ agreeing) said at [122]: "122 The following propositions regarding the operation of the predecessor to rule 4.15 (which was expressed in essentially identical terms) are settled: (i) the discretion to grant leave will be exercised in an applicant's favour where there has been a miscarriage of justice, such that the applicant has lost a real chance of acquittal [Trevascus v R (2021) 104 NSWLR 571; [2021] NSWCCA 104 at [32] per Bellew J, Hoeben CJ at CL and Hidden AJ agreeing, cited in Pratten v R [2021] NSWCCA 251 at [95]]; (ii) if a necessary element of a fair trial has been overlooked, leave should generally be granted [Trevascus at [32] cited in Pratten at [95]]; (iii) in adversarial litigation such as a criminal trial, and subject to carefully controlled qualifications, parties are bound by the conduct of their counsel who exercise a wide discretion in deciding (inter alia) what issues to contest [Greenhalgh v R [2017] NSWCCA 94 at [17]]; and (iv) the fact that no objection is taken to a particular direction is, in most cases, cogent evidence that counsel, absorbed in the atmosphere of the trial, saw no injustice or error in what was said or done [Aravena v R (2015) 91 NSWLR 258; [2015] NSWCCA 288 at [121]]." 1. The Applicant has not demonstrated a foundation for the grant of leave under Rule 4.15 to rely upon the ground of appeal against conviction. 2. In my view, the Court does not reach the point where it would be necessary to consider whether leave should be granted under s.5(1) Criminal Appeal Act 1912 to appeal against conviction. 3. I would refuse the Applicant leave under Rule 4.15 to rely upon the first ground of appeal. The Sentence Appeal 1. Following the return of guilty verdicts on 24 September 2020, a sentencing hearing was listed at the Newcastle District Court on 11 December 2020 and the Applicant was refused bail. 2. The sentencing hearing proceeded on 11 December 2020 with the tender by the Crown of a number of documents (including a victim impact statement) (Exhibit 1) with the defence tendering a report dated 20 November 2020 of Rebecca Smith, psychologist (Exhibit 2), a statement dated 18 December 2019 of Detective Senior Constable Penelope Allan (Exhibit 3) and an affidavit of the Applicant dated 11 December 2020 (Exhibit 4). In addition, both the Crown and counsel for the Applicant furnished written submissions on sentence (MFI1 and MFI2 respectively). 3. The Applicant has a prior criminal history which did not include sex offences. The Applicant had been sentenced by way of non-custodial orders for contravention of an apprehended violence order (in 2005, 2007 and 2009) and using a carriage service to menace or harass (in 2009 and 2013). 4. No oral evidence was given at the sentencing hearing and short oral submissions were made on behalf of the Applicant and the Crown. 5. At the conclusion of the sentencing hearing, his Honour proceeded by way of ex tempore sentencing remarks. 6. The sentencing Judge commenced his remarks with reference being made to James' victim impact statement made on 8 December 2020, when James was 11 years old. His Honour said (ROS1): "One of the important matters in assessing the sentence to impose on someone for a criminal offence is the harm that that offence has caused. In this case, the victim of four offences of either indecent assault or sexual touching, is a child who has prepared a Victim Impact Statement. Despite his young age, the victim has eloquently expressed the significant harm that these offences have caused to him. It is sad to say that such consequences are commonplace when sexual offences are committed upon children. This is what the victim said: 'When my mum asked me if it's had an impact on me, I said, 'Of course it has. Ever since it happened I have been sad and depressed. I can't get it out of my head. It's like it's stuck in my head. I've felt bad about it because it shouldn't happen to kids. It's changed everything. I have less fun now. I find it harder to be with friends. I don't want to go to school. My mum says school has been the biggest impact as I used to love going to school. I was good and on time and never missed school. After, I couldn't go to school because I couldn't get up, because I was too depressed. I also didn't want to go because of my old teachers at school. I don't trust men now. I don't trust anyone any more. I have had to see mum sad, which makes me sad. She trusted them and they were her close friends and they betrayed he trust. I was nervous and a little scared of court at first, would get sick in the tummy. I was fearful the whole time, because of speaking up'." 1. His Honour continued (ROS1-2): "I am sure it is now understood why I have said that the impact upon the victim, of the offender's crimes, is significant. It is likely to be long-lasting. It is entirely possible that the victim will be affected for the entirety of his life, because of what the offender did to him, simply so that he could obtain a few brief moments of sexual gratification." 1. The sentencing Judge then recited the facts of the offences (ROS2-4): "On the first occasion he committed three separate offences upstairs in the house. The victim had gone to bed in the spare room, but he had trouble sleeping, because he was scared. The offender asked him if he would like him to lie down next to him on the bed. The victim said he would. Soon afterwards, the offender began to rub his penis, that is the victim's penis. That is the first offence for which the offender is to be sentenced - an offence of indecent assault on a child under the age of 16. Of course the victim was significantly under the age of 16, being as I have already mentioned, just under the age of 10. The next thing that happened is that the offender grabbed the victim's hand and placed it on his own penis, causing the victim to masturbate him. That is another offence of indecent assault on a child under 16. After that, the offender put some liquid between the victim's thighs and rubbed his penis between them, holding onto the victim's hips as he did so. It was described in the offender's trial as an act of simulated sexual intercourse, which seemed to be a fairly accurate description of what the victim said in his evidence. That is another offence of indecent assault of a child under 16. The victim did not tell his mother about these events, being afraid of the way she would act. He did however, tell her after the next offence I will shortly describe, because he perceived that this offence was worse than what he had experienced before. The fourth offence occurred over the Australia Day weekend in 2019. Once again, the victim was staying at the house with the offender's son, [Michael]. This time everyone was sleeping downstairs because it was hot and there was an air-conditioner in the lounge room. At one stage the offender approached the victim and asked him 'Do you want to play around like we did before?'. The victim did not know what he meant, so he said yes. The offender told him to pull his pants down, which he did, and then the offender put his penis between the victim's legs and once again, began to simulate sexual intercourse. The offender asked the victim whether he wanted him to put his penis in his bum, to which he replied, 'No', and he kept saying that. Eventually the victim stopped because the victim was crying. Before he stopped however, the offender tried to convince the victim to let him put his penis into, what he described as his bum. He said, 'shut up, just do it'. It is certainly not a case that the offender desisted from his attempts to persuade the victim to perform a more serious sexual act. I note however, and I emphasise, that I am fully aware that the offender is not to be sentenced for an attempted act of sexual intercourse without consent, but I do note that the offender did not take no for an answer, at least at first." 1. In reciting the facts of Count 4, where reference was made to a liquid being dropped onto James' face, his Honour said that he could not be satisfied beyond reasonable doubt that the liquid was ejaculate, with this conclusion being consistent with the submissions made by the Crown and counsel for the Applicant on sentence. 2. The sentencing Judge then made findings concerning the Applicant's disadvantaged upbringing and his moral culpability (ROS4-5): "[The Applicant] had a childhood which was clearly less than ideal. His father was violent and his parents separated when he was quite young. [The Applicant] and his mother had to move houses every six months because his mother was on the run from his father. [The Applicant] has no relationship with his father and has no idea where he lives. His mother was an alcoholic, who was unable to provide the nurturing that [the Applicant] required. Once he got to school, he was bullied in a significant way. When an offender has a less than ideal background, there can be situations where that background is relevant to the offender's moral culpability. A person who experienced profound childhood deprivation as they were growing up, is less able to make the right choices in life, than a person who has not suffered from those disadvantages. In this case, the offender cannot be described as having had a childhood which was profoundly deprived. But his unfortunate background is, nevertheless, to be taken into account, in assessing his moral culpability. That said, I can see little connection between his background, an alcoholic mother, a violent father and being bullied at school, and his offending. His offending appears to have been the product of a desire for sexual gratification and little else." 1. His Honour made the following findings concerning the objective gravity of the offences (ROS5-6): "I have to make an assessment of the objective gravity of these offences and the first two offences involve either the victim's penis being fondled by the offender or the offender forcing the victim to fondle his own penis. They are clearly very intimate matters involving skin to skin contact with highly private areas. As far as the other two offences are concerned, they were far from brief and involved the offender's penis being placed between the thighs of the victim, with the offender rubbing his penis backwards and forwards. I would assess the first two counts as being slightly below the mid-range of objective gravity and the last two as being slightly above the mid-range of objective gravity, Count 4 being slightly more serious than count 3 because of the presence of [the Applicant's partner]." 1. The sentencing Judge had regard to the standard non-parole period which applied to the offences in Counts 1, 2 and 3 (ROS6): "I note that there are standard non-parole periods for the first three offences. The standard non-parole periods are difficult to apply and I find it hard to follow the obligations imposed upon me by Parliament when the standard non-parole period is 80 per cent of the head sentence. That is not to say that the standard non-parole period can be ignored. It certainly cannot. As well as the head sentence of 10 years for each offence, the standard non-parole period for the first three offences is an indication to me of the seriousness with which Parliament regards offences of child sexual abuse. I will take both the head sentence and for the first three offences, the standard non-parole periods, into account when I sentence [the Applicant]. I will not imposed the standard non-parole period in any case, for the reasons which appear in these remarks on sentence, but for the assistance of others, they primarily relate to the circumstance that I will soon discuss, of [the Applicant] being himself, sexually assaulted in custody and the need to protect the community by ensuring that when [the Applicant] is released from custody, he is supervised, in an effort to minimise his risk of reoffending." 1. His Honour had regard to the fact that the Applicant had been sexually assaulted whilst in prison and noted that he was a complainant in a trial then pending, arising from that incident. As a result, the Applicant was in protective custody and his Honour took into account that he would serve his sentence in conditions which were harsher than would otherwise be the case, with the consequential risk that the Applicant may serve the entirety of his sentence in protective custody with these risks being taken into account on sentence (ROS6-7). 2. The sentencing Judge observed that "general deterrence is of prime importance in sentencing the offender, as it is for almost all sentences involving the sexual assault of children" (ROS7). 3. A finding of special circumstances was made as it was the Applicant's first time in custody, together with the need for the community to be protected by minimising the risk of the Applicant committing further offences upon release, with this involving an extended period of supervision on parole (ROS8). 4. His Honour proceeded to nominate the indicative sentences mentioned earlier in this judgment and pass the aggregate sentence which is challenged on appeal in this Court. Ground 2 – The Aggregate Sentence was Manifestly Excessive by Reason of the Manifest Excessiveness of the Indicative Sentences Submissions for the Applicant 1. Mr Wendler submitted that the aggregate sentence was manifestly excessive by reason of the manifest excessiveness of the indicative sentences nominated by the sentencing Judge. 2. It was submitted that the Applicant, aged 38 years at the time of sentence, had lamentable childhood years, with reliance being placed upon the psychological report which noted his dysfunctional upbringing and exposure to domestic violence and instability, although not detecting any mental health abnormalities. 3. Whilst noting that the Applicant had a limited criminal history, it was submitted that he had no history of criminal offences nor had he been sentenced to terms of imprisonment in the past. 4. In addition, by the time the Applicant came to be sentenced, he had been physically and sexually assaulted in prison so that he was likely to spend his sentence in protective custody. 5. Whilst noting that there is no appeal against an indicative sentence only, Mr Wendler submitted that manifest excess in an indicative sentence may reveal why an aggregate sentence is itself manifestly excessive: Evans v R [2017] NSWCCA 281 at [41], [50]-[51]. 6. It was submitted that Counts 1 and 2 involved a course of conduct which was opportunistic and involved a breach of authority and trust, but was not accompanied by threats of violence and was of short duration. It was submitted that the sentencing Judge was correct to characterise the objective seriousness of these offences as being slightly below the mid-range. It was submitted, however, that the indicative sentence of six years' imprisonment with a non-parole period of three years for each offence was itself manifestly excessive and that this contributed to the imposition of a manifestly excessive aggregate sentence. 7. With respect to Counts 3 and 4, it was submitted that the sentencing Judge had erred by finding that these offences were slightly above the mid-range of objective seriousness and that the head indicative sentences of imprisonment for these two offences were close to the maximum penalty for offences of this type. 8. It was submitted that this Court should uphold the second ground of appeal and resentence the Applicant to a lesser aggregate term of imprisonment. Submissions for the Crown 1. The Crown submitted that it was necessary for the Applicant to demonstrate that the aggregate sentence was unreasonable or plainly unjust for the purpose of establishing that the sentence imposed was manifestly excessive. 2. The Crown acknowledged that indicative sentences may be a guide to whether error can be demonstrated in the aggregate sentence, but that the only operative sentence is the aggregate sentence. For this reason, an indicative sentence can be excessive without the aggregate necessarily being so: JM v R (2014) 246 A Crim R 528; [2014] NSWCCA 297 at [39](12). Accordingly, the Crown submitted that the fundamental question for this Court is whether or not the aggregate sentence is manifestly excessive when viewed against the total criminality that fell to be reflected in it: Vaughan v R [2020] NSWCCA 3 at [91]. 3. The Crown submitted that, in view of the following features, the aggregate sentence imposed was not manifestly excessive: 1. the Applicant was to be sentenced for four offences, each of which carried a maximum penalty of 10 years' imprisonment; 2. three of the offences carried a standard non-parole period of eight years; 3. the Applicant was sentenced after trial and had no discount for guilty pleas available to him; 4. all of the offences were aggravated by reason of the Applicant having been in authority over the victim (James); 5. the victim (James) was significantly below the age of 16 years, being aged nine or 10 years at the time of the offences; 6. even though Counts 1, 2 and 3 occurred in the one course of conduct, it cannot be said that any of those offences comprehended one another so that some degree of notional accumulation was called for, with substantial notional accumulation arising for the offence in Count 4 which was committed on a separate occasion; 7. all of the offences involved skin-on-skin contact; 8. Counts 3 and 4 were particularly serious, involving what was described as "simulated sexual intercourse", with the Applicant's bare penis rubbing between the victim's (James) legs with it being open to the sentencing Judge to characterise those offences as falling above mid-range; 9. Count 4 was aggravated by the presence of the Applicant's partner at the time of the offence; 10. as the sentencing Judge noted, the Applicant did not immediately desist with the offence in Count 4 notwithstanding the victim's (James) resistance; 11. general deterrence was a particularly important sentencing consideration; 12. the fact that the offences were not further aggravated by threats of violence did not mitigate them: R v CTG [2017] NSWCCA 163 at [60]-[62]; and 13. there was no evidence of remorse or insight and the Applicant's prospects of rehabilitation, whilst "not bleak", were not good. Decision on Sentence Ground 1. The applicable principles concerning a claim of manifest excess were summarised by R A Hulme J in Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221 at [443]: "When it is contended that a sentence is manifestly excessive it is necessary to have regard to the following principles derived from House v The King at 505; Lowndes v The Queen (1999) 195 CLR 665; [1999] HCA 29 at [15]; Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54 at [6]; Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64 at [58]; Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [25], [27]; and Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45 at [59]: • Appellate intervention is not justified simply because the result arrived at in the court below is markedly different from sentences imposed in other cases. • Intervention is only warranted where the difference is such that it may be concluded that there must have been some misapplication of principle, even though where and how is not apparent from the reasons of the sentencing judge, or where the sentence imposed is so far outside the range of sentences available that there must have been error. • It is not to the point that this court might have exercised the sentencing discretion differently. • There is no single correct sentence and judges at first instance are allowed as much flexibility in sentencing as is consonant with consistency of approach and application of principle. • It is for the applicant to establish that the sentence was unreasonable or plainly unjust." 1. Ground 2, as drafted, is not a free-standing ground of appeal. Rather, it should be treated as a submission in support of a ground which contends that the aggregate sentence is manifestly excessive. The indicative sentences constitute statutory notional building blocks as part of the process of aggregate sentencing. However, the indicative sentences have no effect of themselves. A ground of error alleging manifest excess must be capable of being made good by reference to the aggregate sentence itself, and not merely the nominated indicative sentences: Noonan v R [2021] NSWCCA 35 at [33]-[37]. 2. The issue for this Court concerns the claim that the aggregate sentence is manifestly excessive. This requires consideration of the totality of the Applicant's offending conduct. In Lee v R [2020] NSWCCA 244, Beech-Jones J (as the Chief Judge at Common Law then was), with the agreement of Payne JA and Fagan J, said at [32]: "Further, with an aggregate sentence, although the indicative sentences specified in accordance with s 53A(2) of the Sentencing Act are not themselves amenable to appeal, they can be a guide to whether error is established in relation to the aggregate sentence (JM v R [2014] NSWCCA 297 at [40] per RA Hulme J with whom Hoeben CJ at CJ and Adamson J agreed and cases cited thereat; 'JM'). Even if the indicative sentences are considered excessive, that does not necessarily mean that the aggregate sentence is excessive (PD v R [2012] NSWCCA 242 at [44], [82]; BJS v R [2013] NSWCCA 123 at [252]-[254]). The corollary of that proposition is that, even if the indicative sentences are not excessive in their own right, then that does not preclude a conclusion that the aggregate sentence is excessive. In that regard, the principles concerning cumulation, concurrency and totality are still applicable to the sentencing exercise when an aggregate sentence is imposed (Beale v R [2015] NSWCCA 120 at [73]; 'Beale'). The 'potentials for accumulation' of the various notional sentences can be examined to determine whether the 'aggregate sentence represents a sound exercise of sentencing discretion' (R v Brown [2012] NSWCCA 199 at [35] per Grove AJ; Beale at [73]), although the absence of any requirement to specify beginning and end dates for each notional sentence may make it more difficult to demonstrate a relevant error in applying those principles (Beale id; Martin v R [2014] NSWCCA 124 at [37]). The 'principle', or even ultimate, 'focus of determination of a ground alleging manifest inadequacy or excess will be whether the aggregate sentence reflects the totality of the criminality involved' (JM at [40])." 1. Beech-Jones J returned to the topic in Noonan v R where, with the agreement of Bathurst CJ and Wilson J, his Honour said at [41]: "The application of this principle to aggregate sentences is addressed in the above extract from Lee. To that discussion should be added the statement by R A Hulme J in Aryal (at [50]) that, at least where totality considerations are said to bear upon whether a sentence is manifestly excessive, then 'rather than making an assumption that the indicative sentences are correct, and then endeavouring to assess the extent by which there has been some notional accumulation, the critical question is … 'whether the aggregate sentence reflects the total criminality involved' (citing JM v R [2014] NSWCCA 297 at [40(13)])." 1. In Burke v R [2022] NSWCCA 6, Fullerton J (McCallum JA and Walton J agreeing) recounted (at [30]) the principles concerning a claim of manifest excess, as summarised by Bell P (as the Chief Justice then was) in He v Sun (2021) 104 NSWLR 518; [2021] NSWCA 95 at [41]-[42], and then continued at [32]-[33]: "[32] The principal focus for the determination of a ground of appeal alleging manifest excess in the appointment of an aggregate sentence is whether the sentence fairly reflects the totality of the criminality involved or, to put it another way, whether the aggregate sentence can be shown to be unreasonable and plainly unfair having regard to the totality of the criminality comprehended by the sentence, after taking into consideration all factors bearing upon the ultimate imposition of sentence (See the discussion of JM v R (2014) 246 A Crim R 528; [2014] NSWCCA 297 and Kerr v R [2016] NSWCCA 218 by RA Hulme J in Hall v R [2021] NSWCCA 220 at [94]-[97]). [33] Additionally, and equally as importantly, where an aggregate sentence is under challenge as manifestly excessive, and the Court's attention is directed to what is said to be the severity of the indicative sentences to make out that ground, the focus will not be on whether one or more of the indicative sentences is excessive per se, but whether the applicant has established that after principles of totality are applied the aggregate sentence is unreasonable or plainly unjust (JM v R at [40]; Chaouk v R [2017] NSWCCA 295 at [63]). It is only where the nomination of an indicative sentence or sentences suggests error in the appointment of the aggregate sentence that a ground of manifest excess may be made out. Where that argument has been successful, it is because the Court is satisfied that the relative severity of the individual sentences called for a greater degree of notional concurrency in the imposition of the aggregate sentence." 1. When sentencing for aggravated indecent assault offences under s.61M(2) Crimes Act 1900, it is necessary to have regard to the physical conduct involved in the offence with skin-on-skin contact with the genital region being of particular seriousness: Bray v R [2018] NSWCCA 301 at [32]. This is especially so where, as here, the offence involves skin-on-skin contact with the genital region of a child: EJDG v R [2012] NSWCCA 251 at [9]-[10]. 2. In the case of each of the s.61M(2) offences contained in Counts 1, 2 and 3, James was under the authority of the Applicant, with an associated breach of trust in the commission of the offences so as to aggravate the seriousness of each offence: s.21A(2)(k) Crimes (Sentencing Procedure) Act 1999: EJDG v R at [27]-[28]. 3. Similar considerations apply to the assessment of objective seriousness with respect to the offence under s.66DB(a) Crimes Act 1900 contained in Count 4. This was an offence of intentional sexual touching of a child aged 10 years, and James was aged at the lowest level of the range of 10 to 16 years accommodated by that provision. 4. The maximum penalty for each offence, and the standard non-parole period applicable to the offences contained in Counts 1, 2 and 3, were important legislative guideposts for the purpose of sentence: Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 at [27]. As the sentencing Judge observed, the relationship between the maximum penalty (10 years) and the standard non-parole period (eight years) for s.61M(2) offences is difficult to understand. There is some tension arising from the curious relationship between the maximum penalty and the standard non-parole period for s.61M(2) offences. In Noonan v R, Beech-Jones J (at [45]) noted "the problematic nature of a standard non-parole period that is 80% of the maximum penalty". Nevertheless, it remains the responsibility of the Court to have regard to the standard non-parole period when sentencing for offences of this type: Corby v R [2010] NSWCCA 146 at [71]. 5. Count 4 involved an offence of intentionally sexually touching a child between the age of 10 and 16 years under s.66DB(a) Crimes Act 1900, which does not carry a standard non-parole period. The offence under s.66DA of sexually touching a child under 10 years carries a maximum penalty of imprisonment for 16 years, and a standard non-parole period of eight years is specified for that offence. Section 66DA did not apply to the offence in Count 4, as James was 10 years and one month old at the time of the offence. 6. Accordingly, although the Applicant's offending conduct for the offence in Count 4 is similar to the conduct in Counts 1, 2 and 3, with the same maximum penalty applying for all four offences, there is no standard non-parole period at all with respect to Count 4. The term "sexual touching" is defined in s.61HB Crimes Act 1900 in a way which accommodates the type of offending conduct which occurred in Counts 1, 2 and 3. 7. The sentencing exercise in this case was especially "problematic" as the apparently disproportionate 80% standard non-parole period which applied to Counts 1, 2 and 3 fell away entirely so that there was no standard non-parole period to operate as a "legislative guidepost" on Count 4. 8. In the District Court, the Crown submitted that each of the four offences fell above the mid-range of objective seriousness for offences under the relevant provision. Counsel for the Applicant at first instance submitted that the offences in Counts 1 and 2 fell slightly below the mid-range and the offences in Counts 3 and 4 fell within the mid-range of objective seriousness. As noted earlier (at [91]), the sentencing Judge found that Counts 1 and 2 fell slightly below the mid-range and Counts 3 and 4 slightly above the mid-range of objective seriousness. 9. Insofar as a submission was made in this Court that the sentencing Judge had erred by finding that Counts 3 and 4 were above the mid-range, I do not accept that submission. It was open to the sentencing Judge to make that finding concerning those offences having regard to the features of those offences identified by his Honour. 10. However, the findings made concerning Counts 3 and 4 were that the offences were "slightly above the mid-range of objective gravity" with Count 4 being "slightly more serious than Count 4 because of the presence" of the Applicant's partner. Despite the absence of a standard non-parole period to operate as a "legislative guidepost" on Count 4, an indicative sentence of imprisonment for eight years was nominated for that offence. 11. I am satisfied that error has been demonstrated in the nomination of an indicative sentence of eight years imprisonment for Count 4 in circumstance where that conclusion was discordant with the finding of objective seriousness of that offence and the complete absence of a standard non-parole period to operate as a guidepost on sentence. 12. This is an unusual feature of this case which has served to infect the aggregate sentence in the manner outlined in the authorities referred to earlier in this judgment (at [109]-[112]). Error has been demonstrated which affects the aggregate sentence imposed for the totality of the offences. 13. I am satisfied that the Applicant has made good the second ground of appeal concerning sentence. It is necessary for this Court to exercise the sentencing discretion under s.6(3) Crimes Appeal Act 1912. 14. These were offences of considerable seriousness as the sentencing Judge found. The offences were not confined to one occasion. The Applicant committed serious crimes against this young boy on two separate occasions in circumstances which traumatised the child. The impact upon James was noted by the sentencing Judge and was to be taken into account on sentence in accordance with the principles in R v Gavel (2014) 239 A Crim R 469; [2014] NSWCCA 56 at [110]. 15. Whilst having regard for the "problematic" standard non-parole period on Counts 1, 2 and 3, it is important that it not be given undue weight in the exercise of instinctive synthesis. 16. Counts 1, 2 and 3 constituted part of the same course of conduct on one occasion. Count 4 occurred separately some months later. This is not a case of multiple offences being committed over a period of many months or years. These aspects are significant in assessing the totality of the Applicant's criminal conduct. 17. I have kept in mind that the Applicant, as was his right, proceeded to trial and was found guilty by the jury. As a result, he is not entitled to any discount for guilty pleas, nor was there any aspect of contrition or remorse to be taken into account in his favour on sentence. Further, specific and general deterrence are important factors to be taken into account on sentence. 18. At the same time, the Applicant had a difficult upbringing and childhood experiences, as well as more onerous custodial conditions (including attacks upon him) so that his sentence will likely be served entirely in protective custody. These aspects are to be taken into account in the exercise of instinctive synthesis. 19. Having regard to all aspects to be taken into account in determining individual sentences, including the "problematic" standard non-parole period on Counts 1, 2 and 3 and the absence of a standard non-parole period on Count 4, I would nominate the following indicative sentence for the four offences: 1. Count 1 – imprisonment for five years with a non-parole period of two years and six months; 2. Count 2 – imprisonment for five years with a non-parole period of two years and six months; 3. Count 3 – imprisonment for six years with a non-parole period of three years; 4. Count 4 – imprisonment for six years. 1. In identifying a non-parole period as required for each of Counts 1, 2 and 3, a finding of special circumstances has been made for the reasons given by the sentencing judge (see [95] above). 2. In determining the aggregate sentence, I have regard to the totality of the Applicant's criminal conduct committed on two separate occasions. A substantial degree of notional concurrency is appropriate for Counts 1, 2 and 3 with a greater degree of notional accumulation for the separate and later offence contained in Count 4. 3. For the purpose of determining the relationship between the head sentence and non-parole period as components of the aggregate sentence, a finding of special circumstances should be made (for the reasons expressed at [95] above). 4. The aggregate sentence should comprise a head sentence of imprisonment for eight years and six months with a non-parole period of five years. Conclusion 1. I propose the following orders: 1. refuse the Applicant leave under Rule 4.15 Supreme Court (Criminal Appeal) Rules 2021 to rely upon Ground 1; 2. refused leave to appeal against conviction; 3. grant leave to appeal against sentence; 4. allow the appeal against sentence; 5. quash the aggregate sentence imposed at the Newcastle District Court on 11 December 2020 and, in its place, sentence the Applicant to a term of imprisonment for eight years and six months comprising a non-parole period of five years commencing on 10 March 2020 and expiring on 9 March 2025 with a balance of term of three years and six months commencing on 10 March 2025 and expiring on 9 September 2028; 6. the earliest date upon which the Applicant will be eligible for release on parole is 10 March 2025. 1. DAVIES J: I agree with Johnson J. 2. BELLEW J: I agree with Johnson J. ********** Amendments 24 June 2022 - Pseudonym changed DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 24 June 2022