New South Wales Court of Criminal Appeal CITATION: Orkopoulos v R [2009] NSWCCA 213 HEARING DATE(S): 23 June 2009 JUDGMENT DATE: 25 August 2009 JUDGMENT OF: Spigelman CJ at 1; McClellan CJatCL at 2; Johnson J at 104 1. Appeal against conviction dismissed. 2. Leave to appeal against sentence granted and the appeal upheld in part. 3. The applicant is sentenced as follows: In relation to the offences against s 78K: For count 10 the applicant is sentenced to a fixed term of imprisonment of one year and nine months commencing on 19 April 2014 and expiring on 18 January 2016. For count 11 the applicant is sentenced to a fixed term of imprisonment of two years and three months commencing on 19 April 2014 and expiring on 18 July 2016. For count 18 the applicant is sentenced to a fixed term of imprisonment of two years and three months commencing on 19 October 2014 and expiring on 18 January 2017. For count 28 the applicant is sentenced to a fixed term of imprisonment of one year and nine months commencing on 19 April 2011 and expiring on 18 January 2013. For count 31 the applicant is sentenced to a minimum term of imprisonment of one year and nine months commencing on 19 July 2011 and expiring on 18 April 2013, with an additional term of one year and eight months to expire on 18 December 2014. In respect of the following counts the commencing and expiring date is adjusted and the applicant is sentenced as follows: DECISION: For count 1 the applicant is sentenced to a fixed term of imprisonment of six months commencing on 19 April 2013 and expiring on 18 October 2013. For count 2 the applicant is sentenced to a fixed term of imprisonment of eight months commencing on 19 July 2013 and expiring on 18 March 2014. For count 3 the applicant is sentenced to a fixed term of imprisonment of twelve months commencing on 19 October 2013 and expiring on 18 October 2014. For count 8 the applicant is sentenced to a fixed term of imprisonment of twelve months commencing on 19 January 2014 and expiring on 18 January 2015. For count 9 the applicant is sentenced to a fixed term of imprisonment of two years commencing on 19 January 2014 and expiring on 18 January 2016. For count 12 the applicant is sentenced to a fixed term of imprisonment of twelve months commencing on 19 April 2014 and expiring on 18 April 2015. For count 13 the applicant is sentenced to a fixed term of imprisonment of two years commencing on 19 April 2014 and expiring on 18 April 2016. For count 16 the applicant is sentenced to a fixed term of imprisonment of twelve months commencing on 19 July 2014 and expiring on 18 July 2015. For count 17 the applicant is sentenced to a fixed term of imprisonment of two years commencing on 19 July 2014 and expiring on 18 July 2016. For count 4 the applicant is sentenced to a fixed term of imprisonment of eighteen months commencing on 19 October 2014 and expiring on 18 April 2016. For count 5 the applicant is sentenced to a minimum term of imprisonment of two years and four months commencing on 19 October 2014 and expiring on 18 February 2017. I fix an additional term of four years and eight months to expire on 18 October 2021. CATCHWORDS: CRIMINAL LAW - appeal - conviction appeal - verdicts are unsafe and unsatisfactory - inadequate direction regarding tendency evidence - appeal against conviction dismissed - appeal against sentence - sentence excessive - sentence where offence has been abolished - leave to appeal against sentence granted - appeal upheld in part Drug Misuse and Trafficking Act 1985 Crimes Act 1900 LEGISLATION CITED: Evidence Act 1995 Criminal Appeal Act 1912 Interpretation Act 1987 Crimes (Sentencing Procedure) Act 1999 CATEGORY: Principal judgment Anaout v R (2008) NSWCCA 278 Dodds v R (2009) NSWCCA 78 Papakosmas v The Queen (1999) 196 CLR 297 R v Abusafiah (1991) 24 NSWLR 531 CASES CITED : R v Hartikainen NSWCCA, unreported, 8 June 1993 R v MJR [2002] NSWCCA 129. (2002) 54 NSWLR 368 R v Pritchard [1999] NSWCCA 182; 107 A Crim R 88 R v Shore (1992) 66 A Crim R 37 Rowney v R (2007) 168 A Crim R 579 PARTIES: Milton Orkopoulos (Appellant) The Crown FILE NUMBER(S): CCA 2007/11684 COUNSEL: P Maiden SC (Appellant) L Babb SC (Crown) SOLICITORS: Greg Murray (Appellant) Director of Public Prosecutions (Crown) LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): 2007/11684 LOWER COURT JUDICIAL OFFICER: Coolahan DCJ LOWER COURT DATE OF DECISION: 21 May 2008 IN THE COURT OF CRIMINAL APPEAL 2007/11684 SPIGELMAN CJ McCLELLAN CJ at CL JOHNSON J TUESDAY 25 AUGUST 2009 ORKOPOULOS, Milton v R Judgment NON-PUBLICATION ORDER RE IDENTITY OF COMPLAINANTS LD; BM; TC; EH; NH NON-PUBLICATION ORDER RE VOIR DIRE EVIDENCE OF TM 1 SPIGELMAN CJ: I agree with McClellan CJ at CL. 2 McCLELLAN CJ at CL: The appellant was charged with 36 counts on an indictment containing charges relating to drug and sexual offences. On 19 February 2008 he pleaded guilty to counts 35 and 36 which were: On 24 June 2005 he supplied a prohibited drug namely cannabis leaf, and On November 2006 he had in his possession child pornography. 3 The balance of 34 counts involved allegations of supplying drugs of various types and sexual offences in relation to three complainants known as D, M and B. The offences were alleged to have occurred between 25 August 1995 and 1 August 2006. The counts, grouped for similar offences, were as follows: Counts 1-3; 7, 8, 12, 16, 19, 20, 21, 23, 27, 30, and 32: Supply prohibited drug, namely cannabis contrary to s 23 of the Drug Misuse and Trafficking Act 1985 for which the maximum penalty is imprisonment for 10 years. Counts 4, 9, 13, and 17: Supply prohibited drug, namely heroin contrary to s 25 of the Drug Misuse and Trafficking Act 1985 for which the maximum penalty is imprisonment for 15 years. Counts 5 and 25: Sexual intercourse without consent contrary to s 61I of the Crimes Act for which the maximum penalty is imprisonment for 14 years. Counts 6, 10, 11, 14, 15, 18, 24, 26, 28, 29, and 31: Sexual intercourse with a male aged between 10 and 18 years contrary to s 78K of the Crimes Act, (s 78K) for which the maximum penalty was 10 years imprisonment. Section 78K was repealed by Act 9 of 2003 which came into force on 13 June 2003. The same Act introduced s 66C which makes it an offence to have sexual intercourse with a child aged between 10 and 16 years irrespective of the sex of the victim. The effect of those legislative changes was to lower the age of consent for males from 18 to 16 years of age. Counts 22 and 34: Indecent assault contrary to s 61L of the Crimes Act, for which the maximum penalty is 5 years imprisonment. Count 33: Aggravated indecent assault contrary to s 61M(i) of the Crimes Act, for which the maximum penalty is 7 years imprisonment. 4 On 6 March 2008 the trial judge directed the jury to acquit the appellant of counts 14, 15 and 29 there being insufficient evidence to support those charges. 5 The jury returned verdicts of guilty in respect of 28 of the counts. The appellant was acquitted of counts 7 and 25. Count 6 was an alternative to count 5 and the appellant was found guilty of the substantive offence. 6 There was no application for a separate trial in respect of any of the counts. The prosecution gave notice pursuant to s 98 of the Evidence Act 1995 that it intended to adduce tendency evidence, being the evidence of each of the complainants. The asserted tendency was said to be evidenced by the appellant's modus operandi by which he would befriend young men, introduce them to cannabis, alcohol or heroin and then attempt to have sexual relations with them. 7 The appellant was sentenced in respect of each count on which he was found guilty. The overall sentence was 13 years and 11 months with a non-parole period of 9 years and 3 months. I have set out below the detail of the individual sentences. 8 The appellant advanced two grounds of appeal with respect to his conviction being as follows: Ground 1 That the verdicts are unsafe and unsatisfactory Ground 2 That his Honour failed to give adequate directions in respect of the tendency evidence adduced against each complainant in respect of the evidence of other complainants. 9 Two further grounds were advanced with respect to an application for leave to appeal his sentence. Those grounds were: Ground 3 That the head sentence was excessive Ground 4 That his Honour failed to take into account in sentencing in respect of the matters involving s 78K of the Crimes Act 1900 that leniency should be granted in circumstances where the offence has been abolished The evidence 10 The appellant was a councillor of Lake Macquarie City Council from 1995 to 1999. During that time he was also employed as an electorate officer in the office of the Member for Swansea. He was elected to the NSW Parliament in 1999 and appointed as the Minister for Aboriginal Affairs in August 2005. Complaints by D 11 Counts 1-5, 8-13 and 16-18 relate to the complainant D who was born on 22 July 1979. D moved to live with his grandparents in Belmont in 1995. His grandparents introduced him to the appellant at a Labor Party function and he later dated the appellant's stepdaughter. D's evidence was that he met the appellant when he was 15 years old. He said that he attended the appellant's home for dinner one night and after the meal they went to a garden shed where the appellant gave him some marijuana to smoke (count 1). D said that he disclosed to the appellant that he had been molested as a young boy and the appellant told D that he could trust him and confide in him. 12 D said in evidence that he subsequently met the appellant on occasions and obtained cannabis (counts 2, 3, 8, 12 and 16). D told his friend MM that he had met the appellant and that he and the appellant had smoked cannabis together. MM was a friend of D's from school. MM gave evidence in which he confirmed that D had told him that he received the cannabis from "a person that he knew, Milton… who was a friend of his grandparents and a Member of Parliament." Although the appellant did not become a Member of Parliament until 1999, during the relevant period he was a councillor of Lake Macquarie City Council and worked in the office of the Member for Swansea. Apart from that matter, which can be readily explained as a misunderstanding, MM's evidence confirms the evidence given by D. 13 D said that the appellant also introduced him to heroin (count 4). He gave evidence that he and the appellant went to a park where they drank some wine and talked. According to D, the appellant asked if he had ever "tried H." D did not know what he was talking about, until the appellant said he was referring to heroin. D gave evidence that the appellant dusted some heroin onto a cannabis cigarette and told D that it would relax him. The Crown alleged that on the first occasion the appellant gave D heroin the appellant had non-consensual intercourse, fellatio, with D (count 5). D said that he was sitting in the car and felt ill, and the appellant commenced fellatio. D tried to push him off and squirmed in his seat, D eventually said "I feel weird, I feel uncomfortable" and the appellant stopped. D said that the appellant supplied him with heroin on subsequent occasions but that he avoided seeing the appellant at night because he was afraid that the appellant would attempt to engage him in sexual activity. 14 D gave evidence that on another occasion he met the appellant and they went to a park where the appellant gave him more heroin (count 9). This time the appellant brought tools for injecting the heroin and showed D how to use them. The appellant held his arm while D injected himself. D gave evidence that he and the appellant engaged in fellatio (count 10) and then returned to the car where anal intercourse took place (count 11). This, according to D, caused him considerable pain. D said that he did not tell any one about the incident because he was scared and ashamed. 15 D gave evidence that he later contacted the appellant for the purpose of obtaining more heroin. They again went to a park where the appellant gave D some heroin which he injected (count 13). They also smoked a cannabis cigarette and shared some wine (count 12). According to D, further sexual acts occurred on this occasion, although the appellant was not charged with an offence in relation to them. 16 D gave evidence that on the last occasion he went to the park with the appellant he had again contacted him asking for drugs. D gave evidence that by this time he was in year 10. The appellant, according to D, gave him some cannabis and heroin (counts 16 and 17). D was not sure if he smoked the cannabis but he did use the heroin. A further act of anal intercourse allegedly took place (count 18). D said that he was lying in the back of the car with his arm over his face, trying not to let the appellant see him cry. 17 The appellant denies assaulting D or of sharing or giving drugs to him. The appellant said that he had met D in 1995, when D was dating his stepdaughter. He did not recall D attending his house for dinner. According to the appellant his contact with him was only for a short period in 1995, he had neither ongoing contact with him nor was D in any way memorable to him. 18 The evidence of JC, the grandmother of D, is at odds with the appellant's evidence. She said that the appellant called by her house when D was present and also gave D a lift in his car one weekend. She said that the event was memorable because she was "impressed that he was going so far out of his way." 19 The appellant's evidence is also at odds with the phone records. The telephone logs record calls in 1998 and 1999 between the appellant and D. The appellant gave evidence that he did not recall ringing D in 1998 or 1999, nor could he think of a reason why he would telephone him during that time. In evidence, which was entirely unconvincing, the appellant suggested that perhaps someone else was using his mobile telephone during this time. The appellant said "There – there appears to be sort of phone logs from my – from my phone and I don't know who used it, but I don't recall ringing him." Complaints by M 20 Counts 19-24, 26-28 and 30-31 relate to the complainant M who was born on 29 March 1982. M started work at McDonalds on 6 April 1997. He gave evidence that he had met the appellant at a bus stop one night after his shift only a couple of weeks after starting at McDonalds. M said that the appellant offered him a lift home and on the way provided him with some cannabis (count 19). He said that on two later occasions the appellant supplied cannabis to him (counts 20-21). M said that on one occasion he went to the appellant's office and the appellant gave him some cannabis that he had in his car. A couple of days later, according to M, the appellant and M went to a lookout where they smoked some cannabis. On this occasion M said that the appellant unzipped M's trousers and fondled his penis (count 22). M gave evidence that in order to cause the appellant to cease he said that a car was coming their way. 21 M gave evidence that a few weeks later he called the appellant and went to his office, where the appellant again supplied him with cannabis (count 23). According to M, he and the appellant smoked the cannabis. The appellant then started massaging his shoulders. M gave evidence that the appellant engaged in fellatio with him (count 24) before penetrating his anus both digitally and with his penis (count 26). M said that he told him to stop because of the pain and the appellant did. M gave evidence that he was still at school, in year ten, when this incident occurred. 22 The evidence given by M during the time of the trial differed from the account he gave to the police. When cross-examined he said that these events occurred before an occasion when the appellant went to the United States of America. However, in his statement to the police he said that they occurred at a time between the America trip and a subsequent occasion when he was given a bottle of wine by the appellant as a gift for his father. Although he accepted that he may be confused about the dates of the appellant's America trip, he denied that his relationship with the appellant only commenced in 2000. 23 M gave evidence of an occasion on which he went to the appellant's office and was given cannabis where he said acts of fellatio occurred (counts 27 and 28). It was on this occasion that he said in evidence that the appellant gave him a bottle of wine to give to his father for his birthday. M's father and mother remember M giving his father wine for his birthday. Both parents gave evidence that this occurred before M turned 18, his father believing that he was 16 or 17. His mother said that it was when M was 16 years old. There is no reason to doubt their evidence which confirms that M knew the appellant prior to December 1999. He turned 18 in March 2000. 24 M's parents also said that they remembered M receiving a parcel in the mail from the appellant in America. According to M's father the parcel arrived before M's 18th birthday. His mother gave evidence that it arrived on 20 March 2000, just a few days before his birthday. The parcel contained T-shirts, shower accessories, cigarettes and a lighter. The package was only signed "from M." It was open to the jury to find that the contents of the package and the fact that it was signed in such a particular way evidenced a more intimate relationship between them than that of a Member of Parliament and his constituent. 25 M gave evidence that the appellant committed a further act of fellatio with him whilst M was still in year 10 when the appellant took him to a bush track in Swansea South (count 31). He said that the appellant gave him cannabis (count 30) as well as money on this occasion. 26 GM was a friend's of M's at school. He gave evidence that he and M would occasionally smoke cannabis together. He said that he remembered that in 1997 or 1998 M told him that he got the cannabis from Milton (the appellant). TM, a person who worked with M at McDonalds and who became close friends with him at the end of 1998, also gave evidence that she and M would occasionally smoke cannabis together. She said, that M had said that he obtained it from Milton. She also gave evidence that M would visit her often quite late at night in 1998 and that he would tell her that "Milton had dropped me off." She also said that she saw M in and near the appellant's office, although she did not put this evidence in her statement to the police. Accordingly there was evidence from two other persons that confirmed that M was in contact with the appellant approximately two years before the appellant said they met. 27 M gave evidence that he and the appellant had an intermittent sexual relationship until he was about 22 years of age. He also gave evidence of travelling to Sydney with the appellant and once going to Parliament House, which he thought occurred when he was 17. M gave evidence that he and the appellant often took drugs together, including amphetamines. He said that they would mix the amphetamine in a cup of water. M also gave evidence that the appellant would give him money, either cash or by depositing it into his back account or into the account of Tracy Bloch, a person that M lived with. M agreed that by late 2000 he was beginning to hassle the appellant for money, and that he had threatened the appellant that he would expose their relationship. 28 Peter Perry a friend of M's gave evidence that he met the appellant in around 2002 and had seen and heard M on the phone making demands for money and threatening to expose his relationship with the appellant. He also gave evidence that M had told him that the sexual activities with the appellant had commenced when M was about 16 years of age, after he was picked up from a bus stop when he worked at McDonalds. 29 M gave evidence that on a day which was probably in around October 2005, at his request, the appellant came to see him. M said that he needed money and that he was upset. He said that he told the appellant that he was upset and struggling and that he was thinking about telling people about their relationship. The appellant laughed and M told him that he did not want to see him again. M told the appellant that this was the last time he was going to ask for money. According to M the appellant agreed that they would not see each other anymore and gave him $50. As the appellant went to leave M began to bang on the car door saying "wait". According to M the driver got out of the car and pushed M away. M said that when he became upset as the appellant went to leave the appellant turned around and punched him. In one respect M's evidence was not consistent with a statement he gave to the police. When giving evidence he denied that the appellant said to his driver "don't let him touch me, don't let him hurt me". In his statement to the police he said that the appellant had given these instructions to his driver. 30 The day after this incident M said that he called the appellant's office and spoke with Ms Sneddon who was the electorate office manager for the appellant. He told her that he and the appellant "had been doing sexual activities from a young age, supplying me with drugs" and that this had been happening since he was fifteen. In cross-examination M denied he telephoned Ms Sneddon in order to "put the wind up" the appellant, or that he made up that the relationship had commenced when he was 15. He said that he had made the call so that he could move on with his life. Ms Sneddon confirmed the conversation. She made written notes as she spoke with M. She said that M was crying throughout the conversation. 31 The appellant gave evidence that he met M in 1999 when he was working long hours as a member of parliament. He saw M waiting at a bus stop one night and offered him a lift once they worked out that M had missed the bus. The appellant said that M was not wearing a McDonalds uniform. The appellant admitted that he had contact with M from December 1999, but said that between December 1999 and April 2000 the contact was because he was helping M to get an apprenticeship. 32 The first telephone call logged between M and the appellant was made on 16 December 1999. Five calls were logged on that day between the telephone at M's parents' house and the appellant's mobile phone or office number. (M gave evidence that before this time he had been calling from a pay phone). The appellant denied tailoring his evidence to the telephone records. The appellant also denied that the volume of calls was due to anything but the appellant's attempt to help M get an apprenticeship or discussions regarding M's problems at home. The evidence led by the crown indicated that from December 1999 onwards there were a number of calls each day between the appellant and M. The appellant admitted to calling M from overseas, he said that he was "showing off at the time" and denied that they were sexually involved or that he was sexually interested in M at this time. The volume of calls was significant. There were 5 on Christmas Eve 1999. If the appellant's version of events was accepted these calls occurred shortly after he and M had met. 33 The appellant's evidence that he had only met M in December 1999 is also at odds with a reference that he wrote on behalf of M. In a letter, dated 1 October 2002, he said that he had known M both professionally and personally for the past four years. The evidence of the appellant was that at the date of writing the reference he had known M for a little over a year. The appellant gave evidence that the reference to four years was simply a mistake on his part. This would seem inherently unlikely and, having regard to M's evidence, was open to be rejected by the jury. I am in no doubt that the appellant's explanation should be rejected. 34 The appellant said that the parcel he sent to M from the United States was not all that different from the trinkets he had bought other constituents. He said he had sent it because he was showing off. However, he could not explain why he was showing off to a 17 year old boy. I find this explanation, as no doubt did the jury, entirely lacking in credibility. 35 The appellant denied having any sexual inclination towards young men until the middle of 2000, and then only in relation to M. He denied sharing anything other than cannabis with M. He denied that the money he had given M was "hush money". 36 David Golightly, the appellant's driver gave evidence about the incident in 2005. He said that he saw the appellant and M come out of the premises and heard the appellant say "Help, help, I need help." Mr Golightly said that he alighted from the car and stood between M and the appellant. The appellant got into the car and they left. Mr Golightly denied threatening M in any way. 37 Ms Sneddon informed the appellant of M's allegations by telephone. According to Ms Sneddon when she told him about the allegations the appellant said: "After all I've done for him" before hanging up. The appellant called Ms Sneddon back and told her that he had spoken with the police and that they had spoken with M. She gave evidence that during the call the appellant said "I'm a Minister of the Crown for God's sake… Oh anyway, he wasn't fifteen." 38 Superintendent Kenny gave evidence that he received a call from the appellant on 11 October 2005 at around 9:30 am. The appellant did not tell the Superintendent that M was making allegations against him. Superintendent Kenny's account of the conversation was: "I'm having trouble with a young man by the name of [M]. He was causing trouble harassing me and my staff at Swansea office for money… I've known this person for a while. He's a young bloke that was struggling and I made the mistake and given him some money on a number of occasions previously … I'm stupid to have done this because now it has encouraged him to keep asking for money. I'm also concerned that this money is being used to buy drugs and not food at all… I'm not giving this person any more money and I've instructed my staff not to give him anything and to call the police if he causes trouble… Can you give him a call and respectfully request that he not attend the office at Swansea to ask for money in the future." Superintendent Kenny said that he asked the appellant "do you want it officially recorded on COPS", to which the appellant replied, "No there is no need for that. I'm sure it will be all right if you talk with him." 39 The appellant gave evidence that in his conversation with Superintendent Kenny he told him that M was making serious allegations against him. However, it is significant that it was not suggested by the appellant's counsel to Superintendent Kenny that the appellant had complained to the superintendent about allegations being made by M even after the Crown made him available to be recalled. I discuss the significance of this omission further below. The appellant said that he asked Superintendent Kenny not to make an official record of the incident because he was concerned for the Superintendent's workload. 40 The Crown's case was that the appellant had asked Superintendent Kenny to talk with M in an attempt to shut down M's complaint but that he did not want an official record which could lead to the matter being further pursued leading to possible controversy. To my mind the Crown's explanation is most likely to be correct. 41 M gave evidence that he received a phone call from a police officer who had received information from the appellant that M was hassling him. The officer told M not to call the appellant or his family. Superintendent Kenny said that he requested M not contact or approach the appellant as he and his staff were feeling harassed by his requests for money. M responded by saying "No worries, I won't go near the place again … I hope I never see him again, but I bet I'll see him in court one day … I will have my day in court." Superintendent Kenny confirmed that M did not make any allegations of sexual assault or drug supply. M said that he did not discuss the allegations because, as he said in re-examination, he "just wanted to get on with [his] life." To my mind this explanation is entirely understandable. 42 Almost twelve months later on 20 September 2006 the appellant again telephoned the police in relation to M. On this occasion he spoke to Superintendent Clark, the Local Area Commander in Lake Macquarie. The Superintendent gave evidence that the appellant said to him: "Oh Allen, I'm up to my neck in it, I just had a call from [M] on [mobile number]. I haven't heard from him for a fucking year and now he just rings me. I was helping him with his family and some money from a special fund I have and then I found out he is a fucking speed freak and he started demanding more and more money. When I became a minister he began making allegations and Michael got someone to ring him and told him he can't start making allegations and blackmailing people. A fucking year goes past and I hear nothing and now he fucking rings me … he just rang my office, I'm in parliament and I rang him back… He needs money or he's going to start spreading allegations again. He said he needs the money for bills and drug debts, so I just hung up. I don't know where to turn, I'm up for re-election and this is freaking me out! … Mick spoke to him in August last year and he stopped after Mick read him the riot act. I was giving money to his missus, he was stealing from her bankcard. I think he was also ringing my home and hanging up… I met him with a group of people from Belmont North and he started coming back to the office. I helped him with an apprenticeship because he lost his job. It was a normal constituent relationship. Then he kept coming back and I found out he was a speed freak. I don't give money to anyone anymore, desperate people make wild allegations…" 43 The appellant wrote a letter to the Superintendent on 22 September 2006 in which he stated "… he threatened to make a statement to police restating allegations previously made in early August last year. You may recall that I advised you that I had immediately reported those allegations to your predecessor." 44 I am satisfied that the appellant was not truthful both when he spoke to Superintendent Clark and in his letter. He implied in both communications that a year before he had told Superintendent Kenny that M had made allegations against him. The evidence of Superintendent Kenny was that the appellant told him that M was harassing him for money. The Superintendent did not record or give evidence that M was making serious allegations against him. I am satisfied the appellant invented these aspects of the conversation in order to give credibility to his version of events. According to Superintendent Clark, the appellant also described his and M's relationship as that of "a normal constituent relationship." The appellant's own evidence makes plain that this was not the case. 45 The police again contacted M who made two statements. He also telephoned the appellant and left a message on his telephone. He eventually spoke with the appellant and made arrangements to meet him. Their conversation at the meeting of 30 September 2006 was recorded. The appellant said to M: "The mathematics, the mathematics, ah, ah don't add up for you, they add up for me and I've got a perfect defence according to my lawyer. Right, he'll make mincemeat of ah, ah, anyone who's trying to make an assertion otherwise. Right. Now you don't have to make a statement. You've sort of got to say they, they've got it wrong. I was ah, they've got it wrong. I was um, not sort of 15." 46 The appellant was attempting to dissuade M from giving a statement in which he alleged that they met when M was only 15. Complaints by B 47 Counts 32-34 relate to the complainant B who was born on 11 July 1987. B met the appellant in November 2003 when he expressed an interest in politics. B gave evidence that the appellant offered him work experience at his electorate office and invited B to accompany him to the ALP National Conference in January-February 2004. The appellant sent B an email giving him details about the conference. In the email the appellant says that B need not pay for hotel or meals but that he needs to bring money for "little things, newspapers, menthol (yuk) cigarettes, condoms, etc". B said that when he and the appellant arrived at Parliament House he was asked by the appellant to bring up a small bag that was located in the glove box of the car. The bag contained condoms and cannabis. The appellant gave him some cannabis to smoke in his office at Parliament House on the night before the conference (count 32). 48 The first night they arrived in Sydney the appellant and B went to a hotel in the CBD. B was under the impression that they were both going to sleep at the hotel in the same room; the room had two sperate beds. B went to bed as the appellant was having a shower. When the appellant came out of the bathroom he was wearing street clothes and, according to B, said, "I don't trust myself, I'm going back to parliament house" and left the room. 49 During the conference they stayed at a hotel in Woolloomooloo. B gave evidence that one night the appellant said to B "I would love to have you" and rubbed B's neck and chest (count 33). More than 2 years later, between 30 April 2006 and 1 June 2006 when B attended the appellant's office to collect his pay, B gave evidence that the appellant rubbed his shoulders and chest (count 34). 50 On 22 September 2006 a conversation between B and the appellant was recorded. The appellant's response upon learning that B may make allegations about the appellant's conduct to the police is significant. Part of the conversation was as follows: "B: Oh okay, I've had a phone call O: From B: From a female Detective at Charlestown. O: Ah ha. B: Wanting me to talk. O: Oh really. B: Yep. O: Oh well, talk B: Um, all the stuff at Mariners Court O: About what B: About you O: About what say, say that again B: About the marijuana smoking and stuff like that O: Ohh, oh really, oh okay B: Um the propositioning. O: Sorry. B: The propositioning and the inappropriate passes and all that kind of stuff. O: Ohh, so how did she find out about that B: She hasn't, I've had a call and she wants me to talk about it. O: So so your saying (laugh) your saying (laugh) she doesn't know about it but she wants to talk about it B: Yeah. O: So Gillian, so someone must have ah spoken B: Obviously O: Ohh, oh well" 51 As the recorded conversation makes plain the appellant's first reaction to both of the allegations made by B, supplying cannabis and inappropriate propositioning, was not to deny them. However, the conversation continued: "B: So what do I say O: Ah you've you you've gotta sort of um ahh, you've gotta sort of um ahh tell the truth my son, I want you to tell the truth and um ah and and live with the consequences. B: And what about your consequences O: Ohh, might as well go now. B: What do you mean you might as well go now O: Well you you've you work it out son B: What your worried about, politically your worried that this will have an effect obviously O: Well no, no listen, perhaps I should, perhaps I um ah ah ah I'll catch up with you some other time okay B: Milton, I'm just about to go out and O: Well B: And I'm just letting you know that I've had a phone call and they want me to talk about what happened in Sydney O: Oh so you spoke to Gillian, okay and Gillian put oh okay well that's that's how she is playing it is it B: Well obviously O: Oh good on her B: So then what am I supposed to say about Mariners Court and you touching me and the marijuana smoking O: I beg your pardon. B: What do you mean beg your pardon. So you've you've never laid a hand on me inappropriately at all O: No B: Ah ha okay, sure O: Ohh this is just, oh well (sigh) well B: So you didn't sort of give me inappropriate massage in the back room of your electoral office, you didn't sort of um proposition me into O: No B: … sex O: No B: You never said that you O: No B: wanted me O: No B: No O: No B: None of that O: No B: What did you do what did you do then Milton O: Well I don't know how you can, how you can prove that B: Prove what O: Anything B: Why how can I not prove it O: Um by merely asserting B: Um O: Is not a proving, is not proving B: So your obviously worried about it O: What B: I mean I'm stressed out Milton I'm worried about it too, for your sake and mine O: Well why why why was it why ahh if you you were so worried about it why were you working in my office all this time B: Well maybe that's because you had me fooled O: Ohh and now that your not working in my office, its oh convenient oh okay B: So you did try to basically, you know shaft me O: What B: When you gave me the three hundred and sixty in your office O: Yeah B: You said O: For back pay B: Yeah you wouldn't have enough to pay me for the rest of that month O: That's right B: What was that all about O: Well precisely what I said B: Which was O: That there wouldn't, that that that there're wasn't any electorate electorate um ah account enough to pay for the rest of the month B: And why were you so awkward towards Gillian because she reported that M stuff to the police O: Well I I didn't know that she had, you've just you've just intimated it to me that she has B: You know that she said that you know that she spoke to Bryce and she said that, that she recorded that telephone conversation with M O: To the, well I didn't know that she, ah ah I know that she'd spoken to Bryce. B: Um O: But I hadn't realised that um in all the time that she'd been working loyally for me that she'd done that, without discussing it with me B: And you forced M to back down you tried to make him back down from that O: I beg your pardon B: From not saying anything O: I don't know what your talking about B: So you don't even know M O: Yeah B: Yeah O: He's a he's a speed freak whose been sort of trying to blackmail me into paying money for his drugs B: And you O: A credible person B: After you sexually assaulted him O: Oh oh that's just absolute bullshit. That's absolute bullshit and it fits quite well into Gillian's sort of frame of mind at the moment, ohh jesus mary and joseph B: Well she's under a lot of stress too Milton so am I O: Well B: I mean I'm getting phone calls from people O: Ahh ahh excuse me B: From people wanting me to talk O: Well do what you have to do son and live with the consequences okay B: What do you O: Don't sort of don't don't don't B: There's no consequences for me Milton O: Oh no of course oh no (laugh) no there aren't, but you've got to live with the consequences too B: I don't have O: Okay B: I don't have to live in guilt Milton O: Of what B: Of what you tried to do to me O: Oh jesus mary and joseph, this is aah, I've gotta, I can't talk to you anymore, I honestly can't its legally impossible for me to talk to you anymore B: Okay" 52 Although the appellant responded with the word "no" when challenged by B and made other denials his responses were not convincing. Rather than say it was untrue the appellant ultimately challenges B's capacity to prove his assertions. 53 When he gave evidence the appellant denied that he took B to Sydney in order to give himself an opportunity to have sex with him. He explained the reference to condoms in the email as an ongoing joke between himself and B. The appellant said that the joke was an attempt to emphasise to B that there was more to life than politics. The appellant denied touching B inappropriately or that he had given him cannabis in the hope that it would lead to sex. The appellant admitted that he asked B to bring the bag of condoms and cannabis into Parliament House. However, the appellant at first said that he did not know what happened with the cannabis but said that the condoms stayed in his office. When pressed he admitted that he took the cannabis with him, that he "didn't leave it behind" and that his initial evidence on this issue was false. 54 The appellant denied that he said to B "I would love to have you." He said that it was always the plan for him to stay at Parliament House but that he had used the bathroom in B's hotel room because the shower facilities in Parliament House were "old and cranky." The appellant's explanation for the admitted sequence of these events was inherently unlikely. Counts 35 and 36 55 Count 35 in the indictment was a charge of supplying cannabis to which the appellant pleaded guilty. This offence related to the supply of cannabis to TC who attended Parliament House with EH on 24 February 2005 as part of a leadership program. The appellant also pleaded guilty to count 36 in the original indictment. This was an offence of possession of child pornography, being a 19 page document downloaded from a website entitled "MeninBoys". Ground 1 – the verdicts are unsafe and unsatisfactory 56 The appellant framed his appeal on the basis that the verdicts were "unsafe and unsatisfactory." Although this formula was commonly used in previous years s 6(1) of the Criminal Appeal Act 1912 provides that a verdict may be set aside if "it is unreasonable or cannot be supported having regard to the evidence." The approach required of the appellate court when s 6(1) is raised is now settled. I discussed it briefly in Dodds v R (2009) NSWCCA 78 where I said: The appellant submitted that the verdict of the jury was unreasonable or cannot be supported by the evidence: Criminal Appeal Act 1912 s 6(1). The correct approach to this question by an appeal court has been considered by the High Court on a number of occasions: M v R (1994) 18 1 CLR 487; MFA v R (2002) CLR 606 at 614 at 615. I summarised the relevant principles in R v Habib [2005] NSWCCA 223 and discussed them in Kaliyanda v R [2007] NSWCCA 300. The court's task is to consider whether upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. The joint judgment in MFA offered the following by way of guidance: "The majority in M pointed out that '[i]n most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced'. In such a case of doubt, it is only where the jury's advantage of seeing and hearing the evidence can explain the difference in conclusion about the accused's guilt that the appellate court may decide that no miscarriage of justice has occurred: 'If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence' [56]. In their conclusion their Honours acknowledge that it is not uncommon for some aspects of the evidence in a trial to be less than wholly satisfactory although juries are usually well able to evaluate conflicts and imperfections of evidence. "In the end, the appellate court must ask itself whether it considers that a miscarriage of justice has occurred authorising and requiring its intervention" [96]. 57 Although the appellant submitted that the verdict was unreasonable his substantive submission identified errors allegedly made by the trial judge. I have considered these matters and have also considered whether the evidence proved the appellant's guilt beyond a reasonable doubt. 58 The first matter raised by the appellant was concerned with the fact that the jury was made aware that the appellant had pleaded guilty to the offence of possessing child pornography. Evidence of his plea was incorporated into a document tendered pursuant to s 191 of the Evidence Act 1995 to which no objection was taken. 59 With respect to its relevance for the trial on the other charges the trial judge directed the jury in the following terms: "Now so far as that document is concerned, members of the jury, the Crown tenders that document for one limited purpose only, and that is to refute any suggestion on the part of the accused that at no time has he ever had a sexual interest in under age boys. That is the limited basis upon which that document is tendered." 60 No further direction or redirection was sought by trial counsel. Accordingly, counsel accepted and, in my opinion did so correctly, that the issues in the trial which were identified by the trial judge made the admission of the document appropriate. There is no reason why its admission would support a submission that the verdict was unreasonable. 61 The second matter raised by the appellant related to the use of the evidence of the allegations made by each complainant as tendency evidence. The purpose of the Crown in tendering that evidence was to confirm the appellant's propensity to groom youths by offering them drugs or alcohol with a view to ultimately engaging in sexual activity with them. 62 Tendency evidence is admissible pursuant to s 97 of the Evidence Act provided the statutory preconditions are met. No complaint was made during the trial or on appeal that any of the preconditions were not met. Before evidence can be admitted it must have "significant probative value" (s 97(1)(b)) and, when tendered in criminal proceedings, the probative value of the evidence must substantially outweigh any prejudicial effect (s 101(2)). If these preconditions are met and the evidence is properly admitted a submission that a verdict of conviction is thereby unreasonable cannot be sustained. 63 Leaving to one side the fact that the evidence was not objected to I am satisfied that it was properly admitted in support of the Crown case. The evidence demonstrated a pattern of behaviour by which the appellant made himself known to young males to whom he would offer drugs and other favours. Once the relationship had been established the appellant would then seek to engage in sexual activity with them. The evidence was of high probative value substantially outweighing any prejudice. 64 The third matter raised by the appellant concerns the evidence of the complaint made by B to Ms Sneddon. The first person to complain to Ms Sneddon was M who called Ms Sneddon and said, "its M. Milton is not a very nice person. He has sexually abused me at 15 – he used to take me to Parliament for God's sake." He referred to the appellant's taking of drugs and said that the appellant had hit him. He also said that the appellant's driver had stood over him. 65 In August 2006 Ms Sneddon showed B a diary entry in an exercise book which outlined the substance of telephone conversation she had had with M. It was then that B made a complaint about the appellant's actions to Ms Sneddon. At the same time he wrote a letter to the ICAC about the matter. It was submitted that B's evidence at the trial was significantly weakened because he had not raised a complaint about the appellant until he was aware of M's complaint. 66 The sequence of these events was apparent to the jury and was the subject of comment by the trial judge. The jury had every opportunity to consider whether as a consequence the probative value of B's evidence was diminished. Further complaint was made that the evidence was hearsay and accordingly unreliable. However, his Honour told the jury that the evidence of B's conversation with Ms Sneddon could not be used as evidence of the truth of B's allegations. His Honour made plain that the purpose of the evidence was confined to refuting any suggestion that the timing of his complaint to Ms Sneddon and his letter to the ICAC arose from an animosity towards the appellant because the latter had sacked him at around this time. His Honour repeated this caution when summarising the evidence of Ms Sneddon reminding the jury that "that evidence is not to be used as evidence of the truth of the allegations." A similar direction was given in relation to the evidence of the conversation between M and Ms Sneddon. 67 The evidence of complaint was led by the Crown pursuant to s 108(3) of the Evidence Act 1995. Although s 60 permits evidence admitted under s 108(3) to be used as evidence of the truth of its contents, as I have indicated his Honour limited its use, relying upon s 136. The purpose for which the evidence was admitted was legitimate, it being relevant for the prosecution to prove that the occasion for complaint was unrelated to the sacking by the appellant. 68 To my mind there was no error in the manner in which the evidence of either M or B was dealt with. The admission of the evidence does not support a submission that the verdict was unreasonable. 69 The fourth and fifth issues raised by the appellant were a challenge to the credibility of M and D. The matters agitated on appeal were all considered at trial and were the subject of counsel's address to the jury. They concerned the admission by each of them that they were drug users and the delay between the alleged events occurring and complaint being made. 70 Because of their admitted drug histories the reliability of both the complainants was challenged by the appellant at the trial. However, the issue was appropriately explored and was capable of being assessed by the jury see Rowney v R (2007) 168 A Crim R 579 at [51]. 71 In his summing up the trial judge reminded the jury that both because of the time between the alleged offences and the proceedings and because of their use of drugs the evidence of both M and D may be unreliable. His Honour said: "The law recognises that their evidence may be unreliable because of the effluxion of time and also because of their admitted use of drugs over a period of time. Whether the evidence is unreliable or not is a matter for you. My task is to do no more than to alert you to the possibility that for those reasons, the reliability of their evidence may be compromised." 72 With respect to the delay in complaint his Honour reminded the jury that there may be good reasons why an immediate complaint was not made, but emphasised that they were entitled to take the delay into account when assessing the credibility of a particular complainant. His Honour reminded the jury of the forensic difficulties occasioned to an appellant by delay and told them that they must scrutinise the evidence of each of the complainants with great care. 73 No complaint was made at the trial or on appeal about the form of the trial judge's directions. The submission was confined to an endeavour to persuade this Court that the evidence of D and M was for reasons of delay and drug taking lacking in probity necessary to found a conviction. The submission is not persuasive. The sensitivity of the allegations together with the state of dependence of the complainants created by the appellant readily explain any delay. Otherwise there is no suggestion that their use of drugs has made them untruthful or compromised their capacity for accurate recollection. Conclusion 74 I have carefully reviewed the evidence of each complainant. They provide a detailed account of the relevant events. Although in some aspects the recollection of M may be confused, the sequence of events which he relates is confirmed by the evidence of his mother and father. I have no doubt that the jury were entitled to accept his evidence. To my mind the evidence of each complainant which was detailed and relevantly confirmed by both the observation of others and in some respects by other persons to whom they had spoken at relevant times was convincing. 75 The appellant elected to give evidence. He was an unsatisfactory witness. His counsel accepted that when cross-examined he "responded in a way that was capable of criticism." His first response to some questions was to criticise the prosecutor. His conduct would not have endeared him to the jury. His behaviour could have diverted the jury from evaluating the substance of his evidence but I am satisfied that this did not occur. 76 I have already referred to an occasion when the appellant conceded that his earlier evidence was not correct. There were others. Although he initially denied using illegal drugs, apart from cannabis, he subsequently agreed that he had used amphetamine. The following exchange occurred: "Q: Well, you were using other drugs, too, weren't you? A: No, only prescribed drugs. Q: No other illegal drugs? A: No other illegal drugs. Q: What about amphetamines? A: No. Q: Never used it? A: Never used it. Q: Now are you sure of that, sir? Just think carefully in case you wish to change your evidence. Have you never used amphetamine? A: Way back I have tried some. … Q: So the idea of using something like ice horrifies you? A: It would horrify everyone. Q: Well, sir, I'm not asking you for your opinion about what everyone would think, I'm asking for yours? A: It horrifies me. Q: You know that that's an amphetamine, don't you, ice? A: Yes, I understand. Q: So you're horrified generally, I take it, about the idea of using amphetamines? A: Yes. … Q: I'm asking you about your use of amphetamines; you have used them, haven't you? A: I may have in the past. I don't recall when. Q: What do you mean you may have used them? A: Well. I certainly – they may have been – I may have drunk something with it in it, but certainly not in any other way." 77 The appellant's lack of candour with respect to his use of amphetamines was confirmed by the evidence of Mr Scott Turner. Mr Turner said that he and the appellant had taken amphetamines together. He said that either he or his mate would inject the appellant. On a couple of occasions they had used ice and on 4 or 5 occasions they had smoked cannabis. Mr Turner gave evidence that he had told many people, including his mother, that he was using amphetamines with the appellant. The appellant's evidence was plainly untruthful. 78 Apart from the specific matters to which I have referred the appellant did not identify any issue with respect to the evidence or the jury's verdict which required consideration by this Court. Nevertheless, I have reviewed the entire transcript and in particular the evidence of each complainant and of the appellant. Apart from the significance of the evidence of each complainant as tendency evidence, its probative value on the particular charge to which it was of primary relevance was compelling. The evidence of each complainant was detailed. None of the complainants knew each other and there was no suggestion of concoction or collusion. The appellant's evidence was far from persuasive and on occasions obviously untruthful. In so far as the jury's verdict required rejection of his denial of particular events and the explanation he gave for others it was to my mind entirely justified. I am satisfied that it was open to the jury to return the guilty verdicts which it did. Ground 2: That his Honour failed to give adequate directions in respect of the tendency evidence adduced against each complainant in respect of the evidence of other complainants. 79 The trial judge gave the jury the following direction with respect to the evidence of tendency: "In this case, members of the jury, the Crown says that the accused had a particular practice, or modus operandi, if I can put it that way, in enticing under-age boys to have sex, that is to say, he gained their confidence. The Crown says that he supplied them with cannabis and alcohol to weaken their resolve, he formed an intimate relationship with them with a view, ultimately, to having sex with them. The Crown says that if you accept one or more of the complainants on this issue, namely that that is how they were introduced to sex by the accused, then you would be entitled to find that the accused had a tendency to operate in that way. If you did so find, that is something that you are entitled to take into account when assessing the credibility of the other complainant or complainants. It is not proof positive of the commission of any offence, but it is a matter that you are entitled to take into account in that way. Of course, it is a matter for you whether you find that he had such a tendency and it is a matter for you, if you do find that he had such a tendency, as to what weight or importance you attach to it. But if you do find that he had that tendency, and you could only do so if you accepted beyond reasonable doubt the evidence of one or more of the complainants, then you are entitled to take it into account in that limited way; that is to say, in assessing the credibility of the other complainant or complainants." 80 The appellant submitted that his Honour should have directed the jury that they must be satisfied of the tendency evidence beyond reasonable doubt. The direction incorporates a statement to that effect and the submission is without substance. No other complaint was made in relation to the form of the direction with respect to the standard of proof. 81 It was further submitted that his Honour failed to direct the jury with respect to the confined use they could make of the evidence of TC and EH. Both TC and EH gave evidence that when they were taken on a tour of Parliament House by the appellant he offered them marijuana. TC gave evidence that when he, EH and the accused were in a courtyard/barbeque area that the appellant said "this is where we do all our drugs". TC said that "[the appellant] ended up offering me a joint. He offered EH one but she said no." This evidence was confirmed by EH. TC, in cross examination, said that the appellant did not make any improper approach either physically or verbally, even though there was a period of time when the appellant and TC were alone together. 82 At the end of the first day of his Honour's summing-up the trial judge, as is conventionally done, asked counsel whether there were matters which required further direction. The prosecutor suggested that his Honour should give a specific direction in relation to the evidence of TC and EH and remind the jury that their evidence could not be used as tendency evidence. The following day his Honour said: "The other thing is this members of the jury, when you come to consider the Crown submission that you would find that the accused had the tendency proposed by the Crown, the only evidence that you can take into account on that issue is the evidence of the complainants themselves. You cannot have regard to the evidence of TC or EH because it has never been suggested that marijuana was given to TC for the purpose of having sexual relationships with him." 83 His Honour had previously reminded the jury that when cross-examined TC had said that the appellant "did not make any improper suggestions to him or make him feel uncomfortable, there were no dirty jokes or sexy jokes or anything like that, even though there was a time when TC and the accused were alone on a balcony while EH was still in the office." 84 The directions were adequate and expressly addressed the issue raised by the appellant in this appeal. The appellant's submission should be rejected. 85 The appellant further submitted that his Honour failed to give specific directions in relation to the allegation of the supply of heroin to D. This relates to counts 4, 9, 13 and 17. D's evidence was that the appellant first offered him cannabis and only on the third occasion that he provided him with drugs did he offer him heroin mixed with cannabis. Thereafter D said that the appellant continued to supply him with both cannabis and heroin. It was submitted that his Honour should have given specific directions to the jury as to the "weight of the evidence of D" because his evidence of being given a marijuana/heroin cigarette was factually different to the evidence of M and B who gave evidence that it was marijuana which was given to them. 86 In my view this submission is without substance. The evidence was that the appellant supplied prohibited drugs to the complainants in the context of grooming them for sexual encounters. Whether the drug was cannabis or heroin did not alter the essential elements of the allegation. No specific direction was required. Rule 4 87 As I have indicated although framed as a ground alleging that the verdicts were unsafe and unsatisfactory, ground 1 raised specific complaints in relation to the conduct of the trial. No issue was raised in relation to those matters or ground 2 at the trial. Accordingly leave is required under rule 4 of the Criminal Appeal Rules for permission to rely on these grounds on appeal. 88 This Court has on a number of occasions made plain that rule 4 is not some mere technicality which may simply be brushed aside: see R v Abusafiah (1991) 24 NSWLR 531 at 536. In Papakosmas v The Queen (1999) 196 CLR 297 at [72] McHugh J emphasised that leave under rule 4 should not be granted unless the Court of Criminal Appeal is "satisfied that the appellant has an arguable case that the trial judge has made an error of law or is satisfied that the appellant's conviction is otherwise a miscarriage of justice." 89 For the reasons which I have discussed I am not persuaded that the appellant has an arguable case with respect to any of the matters raised in grounds 1 and 2 on the appeal. The transcript confirms that the matters now sought to be agitated on appeal as errors were not of concern at the trial. In these circumstances leave to raise grounds 1 and 2 in the appeal should be refused. Sentence 90 The trial judge imposed a separate sentence for each count and provided for varying degrees of concurrency. It is necessary to record the sentences. So that the relationship between each sentence can be readily appreciated I have prepared a graph which is annexed to these reasons. For count 36 a fixed term of imprisonment of four months commencing 19 February 2008 and expiring on 18 June 2008. For count 35 a fixed term of imprisonment of six months commencing 19 June 2008 and expiring on 18 December 2008. For count 32 a fixed term of imprisonment of six months commencing 19 December 2008 and expiring on 18 June 2009. For count 33 a fixed term of imprisonment of nine months commencing 19 February 2009 and expiring on 18 November 2009. For count 34 a non parole period of nine months commencing 19 April 2009 and expiring on 18 January 2010 with a full term of imprisonment of fifteen months to expire on 18 July 2010. For count 19 a fixed term of imprisonment six months commencing 19 January 2010 and expiring on 18 July 2010. For count 20 a fixed term of imprisonment of eight months commencing 19 April 2010 and expiring on 18 December 2010. For count 21 a fixed term of imprisonment of twelve months commencing 19 July 2010 and expiring on 18 July 2011. For count 22 a fixed term of imprisonment of eighteen months commencing 19 July 2010 and expiring on 18 January 2012. For count 23 a fixed term of imprisonment of twelve months commencing 19 October 2010 and expiring on 18 October 2011. For count 24 a fixed term of imprisonment of two years commencing 19 October 2010 and expiring on 18 October 2012. For count 26 a fixed term of imprisonment of two years commencing 19 January 2011 and expiring on 18 January 2013. For count 27 a fixed term of imprisonment of twelve months commencing 19 April 2011 and expiring on 18 April 2012. For count 28 a fixed term of imprisonment of two years commencing 19 April 2011 and expiring on 18 April 2013. For count 30 a fixed term of imprisonment of twelve months commencing 19 July 2011 and expiring on 18 July 2012. For count 31 a minimum term of imprisonment of two years commencing 19 July 2011 and expiring on 18 July 2013 with an additional term of one year eight months to expire on 18 march 2015. For count 1 to a fixed term of imprisonment of six months commencing 19 July 2013 and expiring on 18 January 2014. For count 2 a fixed term of imprisonment of eight months commencing 19 October 2013 and expiring on 18 June 2014. For count 3 a fixed term of imprisonment of twelve months commencing 19 January 2014 and expiring on 18 January 2015. For count 8 a fixed term of imprisonment of twelve months commencing 19 April 2014 and expiring on 18 April 2015. For count 9 a fixed term of imprisonment of two years commencing 19 April 2014 and expiring on 18 April 2016. For count 10 a fixed term of imprisonment of two years commencing 19 April 2014 and expiring on 18 April 2016. For count 11 a fixed term of imprisonment of two and a half years commencing 19 April 2014 and expiring on 18 October 2016. For count 12 a fixed term of imprisonment of twelve months commencing 19 July 2014 and expiring on 18 July 2015. For count 13 a fixed term of imprisonment of two years commencing 19 July 2014 and expiring on 18 July 2016. For count 16 a fixed term of imprisonment of twelve months commencing 19 October 2014 and expiring on 18 October 2015. For count 17 a fixed term of imprisonment of two years commencing 19 October 2014 and expiring on 18 October 2016. For count 18 a fixed term of imprisonment of two and a half years commencing 19 October 2014 and expiring on 18 April 2017. For count 4 a fixed term of imprisonment of eighteen months commencing 19 January 2015 and expiring on 18 July 2016. For count 5 a minimum term of imprisonment of two years and four months commencing 19 January 2015 and expiring on 18 May 2017 with an additional term of four years and eight months to expire on 18 January 2022. Ground 3 The head sentence was excessive 91 Apart from the issue raised by ground 4 the appellant submitted that the "head sentence", being the total time which the appellant must serve in custody before being eligible for parole, was excessive having regard to the fact that the appellant continued to have an ongoing consensual sexual relationship with M and D after the commission of the offences. 92 Leaving aside the problems arising from the fact that the ground of appeal did not address the individual sentences (see Anaout v R (2008) NSWCCA 278) in my opinion the submission should be rejected. With respect to D the submission of a continuing relationship is at odds with the appellant's and D's evidence at the trial. When he gave evidence the appellant denied any relationship with D apart from knowing him because he briefly dated his step-daughter. D's evidence was that he changed his residence after year 10 and moved away from the appellant. He said that there was no sexual activity between them after 1996. 93 With respect to M the evidence indicated that the appellant continued to see him until he was approximately 22 years of age and continued to supply him with drugs and money. M's explanation for the continuing relationship was "basically, I'd become a – like addicted to him asking for sexual favours for me to make sure I can get extra money or by that time smoking pot." Although it is apparent that the relationship continued it was founded upon a dependency arising from the appellant's previous abuse of M and his creation (or encouragement) in him of a dependency upon prohibited drugs. These circumstances would not justify any amelioration of the sentences imposed in relation to the offences where M was the complainant. Ground 4 His Honour failed to take into account in sentencing in respect of the matters involving s 78K of the Crimes Act 1900 that leniency should be granted in circumstances where the offence has been abolished. 94 With respect to ground 4 the appellant submitted that by reason of the fact that the offences comprising counts 10, 11, 18, 28 and 31 have, following the repeal of s 78K, been abolished the sentence for these counts was excessive. As I have previously indicated s 78K was repealed by Act 9 of 2003, which came into operation on 13 June 2003, having the effect of lowering the age of consent to sexual intercourse for a male from 18 to 16 years. 95 This issue was raised at the sentence hearing and when sentencing the appellant his Honour said: "The fact that whilst community standards of morality change over the years, the last offence under s 78K was committed some four or five years prior to the age of consent for homosexual intercourse being reduced from eighteen to sixteen years. The first of those offences was committed some seven or eight years prior to the legislative change. It must be presumed that the community attitude to that offence at the time of the commission of the offences was such as to not only render the acts illegal but to provide a harsh penalty for the offence. The offender, as I said earlier, must have well known this to be the case. Notwithstanding this, he chose to place himself above the law and commit offences. The circumstances in which the individual offences were committed, which I have outlined in the facts, are not without relevance on this issue. In my view, no leniency should be extended to the offender because of the fact that subsequently in 2003 the Legislature then chose to reflect what it must have perceived to have been a change in community attitude to reduce the age of consent for homosexual intercourse to sixteen years." 96 As the sentencing judge indicated this Court has previously considered the situation where community attitudes in relation to particular criminal offences change. Sometimes that change is reflected in a change to the maximum penalty for the offence. In other cases an offence is abolished, although when this happens liability for offences already committed continues by the operation of s 30 of the Interpretation Act 1987. 97 In R v Pritchard [1999] NSWCCA 182; 107 A Crim R 88 this Court considered but rejected a submission that when, by the time of conviction, the relevant offence has been abolished no penalty should be imposed. The case was concerned with an offence of buggery. The court held that the offence could still be prosecuted and there was no restriction upon the court's power to sentence a convicted offender (at [56]). However, Grove J suggested that "if in a given case the circumstances demonstrated a consensual act unaccompanied by any matter of aggravation, abolition of the criminal sanction might be categorised as extreme reduction of penalty" with the result that a nominal penalty may be appropriate (at [20] and see R v Hartikainen NSWCCA, unreported, 8 June 1993). 98 When an offender is sentenced for a crime which was committed at a time when the sentencing regime was different to that which prevails when the offender is being sentenced, the offender must be sentenced in accordance with the sentencing regime applicable at the time of the offence (R v Shore (1992) 66 A Crim R 37; R v MJR [2002] NSWCCA 129. (2002) 54 NSWLR 368; s 19 of the Crimes (Sentencing Procedure) Act 1999) The principle applied by this Court recognises that it would be unfair to an offender if he or she was sentenced by reference to the range of penalties which have resulted from a subsequent change in community attitudes to a particular crime. When the change in sentencing practice for an offence is the consequence of legislative intervention, s 19 of the Criminal Sentencing Procedure Act 1999 operates and any increase in the penalty must be disregarded for an offence committed before the change. Where the penalty has been reduced an offender obtains the benefit of that reduction. 99 It follows that when an offence has been abolished there may be circumstances where a nominal penalty is appropriate. However, much will depend on the nature of the offence and the community attitude to the offence at the time it was committed. Grove J discussed this possibility in Pritchard. Apart from the circumstances relating to the particular offence, which requires consideration of the criminality involved, the personal circumstances of the offender and, in sexual matters, the relationship between the offender and the "victim" must also be considered. However, although changing social attitudes may be reflected in a change in the law, obedience to the law as it exists remains the obligation of every person. 100 Changes in community attitudes to particular offences will generally evolve over time. As the Chief Justice emphasised in MJR (at [11]) when an offence is ultimately abolished it may be expected that the sentences imposed in a period before its abolition would have become more lenient, reflecting the developing change in community attitude. In the present case the most recent s 78K offences occurred between 29 March 1997 and 26 February 2000 approximately between 3½ years and 6 years before their abolition. Although it may be accepted that community attitudes were evolving by that time there was still a significant period before the legislature determined to lower the age of consent. The offences were primarily designed to protect young persons from sexual exploitation by adults, a matter which our community views with considerable concern. To my mind considerations of punishment, retribution and the deterring of other persons from committing criminal offences of a similar character had the same significance as they would have had if the offence had remained. However, deterrence both personal and general with respect to the particular offence is of no continuing significance. 101 As it happens, having regard to the other sentences which his Honour imposed, only the sentences imposed with respect to counts 28 and 31 impose discrete periods of imprisonment and only the sentence for count 31 has any direct practical affect. It extends beyond the sentence imposed for count 28 for a period of 3 months before the sentence for count 1 commences. The sentence for count 28 itself extends for a period of 3 months beyond the term of imprisonment imposed for count 26. Otherwise the sentences for each of the s 78K offences were made entirely concurrent with the sentences for other non s 78K offences. 102 For the reasons I have indicated the sentences for those counts should have reflected the fact that the offences have been abolished. However, as the most recent s 78K offence occurred at least 3 years and 3 months before its abolition, the impact of the abolition should be modest. 103 Because to my mind the only matters which require reconsideration are the sentences for the s 78K offences, the term of the other sentences and the overall sentence being otherwise appropriate, I propose to reduce the sentence for each of the s 78K offences by a period of 3 months with adjustments being made where appropriate to the commencing dates of other sentences. I appreciate that the practical consequence will be that the appellant will only serve a separate period of imprisonment (3 months) for count 31. However, given the number of offences and the complexity of the sentencing process this is not inappropriate. The overall sentence will be 13 years and 8 months with a non-parole period of 9 years. Orders: 1. Appeal against conviction dismissed. 2. Leave to appeal against sentence granted and the appeal upheld in part. 3. The applicant is sentenced as follows: In relation to the offences against s 78K: For count 10 the applicant is sentenced to a fixed term of imprisonment of one year and nine months commencing on 19 April 2014 and expiring on 18 January 2016. For count 11 the applicant is sentenced to a fixed term of imprisonment of two years and three months commencing on 19 April 2014 and expiring on 18 July 2016. For count 18 the applicant is sentenced to a fixed term of imprisonment of two years and three months commencing on 19 October 2014 and expiring on 18 January 2017. For count 28 the applicant is sentenced to a fixed term of imprisonment of one year and nine months commencing on 19 April 2011 and expiring on 18 January 2013. For count 31 the applicant is sentenced to a minimum term of imprisonment of one year and nine months commencing on 19 July 2011 and expiring on 18 April 2013, with an additional term of one year and eight months to expire on 18 December 2014. In respect of the following counts the commencing and expiring date is adjusted and the applicant is sentenced as follows: For count 1 the applicant is sentenced to a fixed term of imprisonment of six months commencing on 19 April 2013 and expiring on 18 October 2013. For count 2 the applicant is sentenced to a fixed term of imprisonment of eight months commencing on 19 July 2013 and expiring on 18 March 2014. For count 3 the applicant is sentenced to a fixed term of imprisonment of twelve months commencing on 19 October 2013 and expiring on 18 October 2014. For count 8 the applicant is sentenced to a fixed term of imprisonment of twelve months commencing on 19 January 2014 and expiring on 18 January 2015. For count 9 the applicant is sentenced to a fixed term of imprisonment of two years commencing on 19 January 2014 and expiring on 18 January 2016. For count 12 the applicant is sentenced to a fixed term of imprisonment of twelve months commencing on 19 April 2014 and expiring on 18 April 2015. For count 13 the applicant is sentenced to a fixed term of imprisonment of two years commencing on 19 April 2014 and expiring on 18 April 2016. For count 16 the applicant is sentenced to a fixed term of imprisonment of twelve months commencing on 19 July 2014 and expiring on 18 July 2015. For count 17 the applicant is sentenced to a fixed term of imprisonment of two years commencing on 19 July 2014 and expiring on 18 July 2016. For count 4 the applicant is sentenced to a fixed term of imprisonment of eighteen months commencing on 19 October 2014 and expiring on 18 April 2016. For count 5 the applicant is sentenced to a minimum term of imprisonment of two years and four months commencing on 19 October 2014 and expiring on 18 February 2017. I fix an additional term of four years and eight months to expire on 18 October 2021. 104 JOHNSON J: I agree with McClellan CJ at CL. ********** 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.