Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Peiris v R [2014] NSWCCA 58 Hearing dates: 10/03/2014; last written submissions 31/03/2014 Decision date: 17 April 2014 Before: Leeming JA at [1]; Button J at [103]; RS Hulme AJ at [104] Decision: (1) Appeal against conviction dismissed. (2) Grant leave to appeal against sentence, and allow the appeal. (3) Quash the sentences imposed on the appellant by Knox DCJ on 10 December 2013. (4) Sentence the appellant on Count 3 to imprisonment for a term of 8 months. (5) Suspend execution of the sentence referred to in order (4) for 8 months. (6) Direct that the appellant be released from custody in respect of that sentence on condition that he enters into a good behaviour bond for 8 months. (7) Sentence the appellant on Count 1 to imprisonment for a term of 14 months. (8) Suspend execution of the sentence referred to in order (7) for 14 months. (9) Direct that the appellant be released from custody in respect of that sentence on condition that he enters into a good behaviour bond for 14 months. Catchwords: CRIMINAL LAW - appeal from conviction - sexual assault - Crown case turned on testimonial evidence of complainant, which was denied by accused - jury convicted on 2 of 3 counts - whether verdicts inconsistent CRIMINAL LAW - appeal against sentence - whether error in not taking into account assistance to authorities - no error where no evidence as to value of assistance - whether error in finding of "breach of trust" as aggravating factor - consideration of Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A(2)(k) - whether error in assessing objective seriousness - whether sentence manifestly excessive - where sentencing judge had regard to Local Court sentencing statistics and said custodial sentence imposed was consistent within range - consideration of use of sentencing statistics Legislation Cited: Bail Act 1978 (NSW), s 30AA Crimes Act 1990 (NSW), ss 61J(1), 61M, 578A Crimes (Sentencing Procedure) Act 1999 (NSW), ss 12, 21A(2)(k), 23, 50 Criminal Appeal Act 1912 (NSW), ss 6(3), 18 Cases Cited: Barbaro v The Queen [2014] HCA 2; 88 ALJR 372 Baumgartner v Baumgartner (1987) 164 CLR 137 Bonwick v R [2010] NSWCCA 177 BT v R [2010] NSWCCA 267 DRS v The Queen [2012] VSCA 276 Fisher v R [2008] NSWCCA 129 Flanagan v R [2013] NSWCCA 320 Giles v Director of Public Prosecutions (NSW) [2009] NSWCCA 308; 198 A Crim R 395 Hili v The Queen [2010] HCA 45; 242 CLR 520 Hughes v R [2008] NSWCCA 48; 185 A Crim R 155 Jones v The Queen (1997) 191 CLR 439 Karl Suleman v R [2009] NSWCCA 70 LB v R [2011] NSWCCA 220 LP v R [2013] NSWCCA 330 M v The Queen (1994) 181 CLR 487 MAH v R; R v MAH [2006] NSWCCA 226 Matthews v R [2013] NSWCCA 187 McKenzie v The Queen (1997) 190 CLR 348 Mitchell v R [2013] NSWCCA 318 Morris v The Queen (1987) 163 CLR 454 R v Bonat [2004] NSWCCA 240 R v Cartwright (1989) 17 NSWLR 243 R v Egan [2013] NSWCCA 196 R v GD [2013] NSWCCA 212 R v JCW [2000] NSWCCA 209; 112 A Crim 466 R v JW [2010] NSWCCA 49; 199 A Crim R 486 R v MAK [2005] NSWCCA 369 R v Markuleski [2001] NSWCCA 290; 52 NSWLR 82 R v NEK [2001] NSWCCA 392 R v Olbrich [1999] HCA 54; 199 CLR 270 R v Palmer [2005] NSWCCA 349 R v Peiris (Supreme Court (NSW), Fullerton J, 17 January 2014, unrep) RJT v R [2012] NSWCCA 280; (2012) 218 A Crim R 490 Smith v R [2011] NSWCCA 163 Vuni v R [2006] NSWCCA 171 Wong v R [2010] NSWCCA 160 Category: Principal judgment Parties: Asela Peiris (Appellant) Regina (Respondent) Representation: Counsel: S Corish / R Rajalingam (Appellant) R Herps (Crown) Solicitors: Purcell Lawyers (Appellant) Solicitor for Public Prosecutions (Crown) File Number(s): 2012/144415 Decision under appeal Jurisdiction: 9101 Date of Decision: 2013-11-20 00:00:00 Before: Knox DCJ File Number(s): 2012/144415 Judgment 1LEEMING JA: The appellant was found guilty by a jury in the District Court of two counts (Counts 1 and 3) on an indictment following a seven day trial. He was acquitted of a count of aggravated sexual intercourse without consent (s 61J(1) of the Crimes Act 1990 (NSW)). Count 1 was an indecent assault contrary to s 61M(1) of the Crimes Act (in the form it then took), with the circumstance of aggravation being that the victim was 10 years old. Count 3 was an indecent assault contrary to s 61M(2) (in its current form), the victim being 14 years old. 2The victim and her family were friends of the appellant. The appellant had migrated to Australia from Sri Lanka when aged around 20, and worked with the victim's father in his lawn-mowing business. He was a frequent visitor to the victim's family home, and from time to time supported them financially; likewise they had supported him upon his arrival in Australia. At a celebration of the victim's coming of age, shortly after the conduct giving rise to the first count, the appellant gave the family a gift of $500. The sentencing judge said that the appellant "had access to the children's bedrooms during this time and was effectively free to move around the house as he wished." 3The indecent assault the subject of Count 1 took place in 2008 when the victim was 10 years old. The indecent assault the subject of Count 3 took place in March or April 2012, when the victim was 14 years old. The appellant was acquitted of sexual intercourse without consent alleged to have taken place in 2010, when the victim was 11 or 12. 4The appellant appeals, as of right, from his convictions. I would, for the reasons which follow, dismiss that appeal. For that reason, I have referred throughout to the young girl who was the complainant as the victim; she cannot be named or otherwise identified: Crimes Act 1900, s 578A. The appellant also seeks leave to appeal from the sentence imposed on 10 December 2013, which was for 12 months imprisonment, with a non-parole period of 6 months, commencing 10 December 2013 in relation to Count 3, and 17 months imprisonment, with a non-parole period of 8 months, commencing 10 January 2014 in relation to Count 1. The total effect of the sentence was for 18 months imprisonment, with a non-parole period of 9 months commencing 10 December 2013 and expiring 9 September 2014. 5The appellant served just over five weeks of that sentence in custody. He had been granted bail before and during the trial. His application for bail immediately after the jury's verdict was refused by the sentencing judge, but a further application was successful, in a reserved decision heard on 16 January and made on 17 January 2014: R v Peiris (unrep, Fullerton J). Her Honour was satisfied that there were "special or exceptional circumstances" in accordance with s 30AA of the Bail Act 1978 (NSW), and not because of the conviction appeal, but because of the strength of the appeal as to sentence. Bail was continued after judgment was reserved in this Court. 6Although there was no express order, it was common ground when the appeal was heard that the intent of the sentencing judge's orders was for the appellant to be released at the conclusion of the non-parole period (cf Crimes (Sentencing Procedure) Act 1999 (NSW), s 50(1)). This Court was invited to make an order to that effect. In effect, that amounts to the correction of a slip, and does not, of itself, amount to error so as to enliven this Court's discretion to re-sentence. Overview of the case at trial 7Because of the nature of the grounds of appeal against conviction, in what follows, I have focussed on the evidence given by the victim. I have not sought to summarise the whole of the Crown case, or the appellant's case, because it is not necessary to do so in order to resolve the appeal. 8The victim's evidence in chief was given by playing to the jury a (slightly edited) video recording of an interview with a Detective Senior Constable on 24 April 2012, some weeks after the conduct giving rise to Count 3. She was thereupon cross-examined (by video link) for much of the second and some of the third day of the trial. 9The victim gave evidence that in 2008, probably the end of 2008, the appellant entered the victim's bedroom and put his hands down her top and squeezed her: "Q208: What did his hands do whilst they were inside your top? A: He would have just squishing them. Q209: What do you mean squishing them? A: Like squeezing Q210: Yeah. What was he squeezing? A: My boobs." 10The victim also said during the interview that a few weeks previously, the appellant had gone into her bedroom and placed his hands into the top of her shirt underneath her bra and squeezed her breasts. 11In relation to Count 2, for which the appellant was acquitted, the Crown alleged digital penetration occurred in the victim's bedroom while she was exchanging messages with a friend on Facebook. The victim was lying in bed, with her laptop, under the blankets, and said that he removed her pants: "[H]e was just talking casually and I was ignoring him because I was talking to her and he just, suddenly just like, I think I was wearing jeans or something and he just unzipped it and he just took it off." 12The victim said that the appellant then put his hands in her underwear. After she pushed his hand away, he told her not to tell her parents or friends. The victim said that it was around this time that she thought she told her friend via a private message on Facebook. 13Exhibit 8 at the trial was a Facebook message from the victim to her friend dated 19 November 2010: "btw u noe dat thing bout asela aiya I think we shud all get together and talk bout coz im really getting scarred now! he touches me in inappropriate places and it makes me feel uncomfortable but im scared 2 tell ammi coz i dont wanna ruin there friendship coz asela aiya has helped us heaps [sic]" 14Prior to being interviewed by the Detective Senior Constable, the victim made notes on her iPhone. The notes were tendered, and included: "Faking to have period Bathroom Offered to take us to the snow Offered to pay for plane ticket for formal Touched my leg in the car Always offered to pay for stuff Gave me $500 Touched my boobs Emma is the police lady" 15The victim agreed that the last line ("Emma is the police lady") was added to the notes early in the interview. When cross-examined, counsel for the appellant (who appeared at the trial) had the victim agree that she had recorded what she thought were the important things so that she could remember them, and that there was no mention of any digital penetration. The victim gave this evidence: "Q: You made a list before the interview of the important things that you wanted to talk about in the interview. A: Yeah. Q: Is the reason why you didn't mention him putting his hand down your pants in your list because it just didn't happen? A: No. That's part of faking to have my period. Q: Sorry? A: That's part of faking to have my period. That's the reason why I faked to have my period, so he wouldn't touch my vagina." 16She maintained that the appellant had touched her vagina and that it was recorded in her list: "It did make the list. It is implied in 'faking to have a period'." 17The appellant gave evidence and was cross-examined. He denied the entirety of the victim's evidence. There were no other witnesses to the alleged incidents, nor any medical evidence, nor any other contemporaneous documentary evidence. Appeal against conviction 18This was a case of diametrically opposed testimonial evidence from the victim and the appellant. The Crown addressed the jury expressly on the basis that they had to accept both the honesty and the reliability of the victim in relation to each of the charges. The appellant submitted that the victim was making up the entire story. In his closing address, he went through the note on the victim's iPhone and continued: "Touched my boobs, that's an allegation but it's in terms of the counts on the indictment, at the lower end of the scale compared to count 2 which is a most serious allegation which doesn't make the list. Nowhere is insertion of a finger in a vagina mentioned, nowhere is there any reference to an attempt to get hands down pants. The most serious allegation by a country mile. Saying that faking to have a period in beds [sic] that is a reinvention of the wheel. [The victim] has made a list of things that she needed to remember and you check them, you saw her doing that. If there is an element of physicality 'touch my boobs' then you'd expect some greater detail in relation to count 2 as to what actually happened. But really this is a series of self justifications, this is a submission to you I'm making, it's a matter for you entirely. ... The fact that those notes were made were needed to be made is something that would cause you to question whether [the victim] is describing real events. The absence of the level of detail as to what actually occurred is something else that would cause you to question whether she's describing real events and the self justification of her interpretation of the money or the plane ticket or a trip to the snow is something that would cause you to question whether she was describing real events." 19The two grounds of appeal from conviction were: Ground 1: The verdicts are inconsistent; and Ground 2: Having regard to the evidence, the verdicts of guilty are unreasonable and cannot be supported. 20When the appeal was heard, counsel for the appellant confirmed that Ground 2 was not separate and distinct from Ground 1, but was in truth "an aspect of [the] primary point that this outcome is inconsistent" (transcript, 10 March 2014, p 3). Certainly, it was not put, either in writing or orally, on behalf of the appellant, that this Court needed to conduct its "own independent assessment of the evidence" in accordance with Morris v The Queen (1987) 163 CLR 454 at 463 and 473 and M v The Queen (1994) 181 CLR 487 at 492 in order to determine whether the verdicts of guilty on Counts 1 and 3 were open. 21The appellant's submission was straightforward. He said that the acquittal of the most serious charge suggested a compromise by the jurors: McKenzie v The Queen (1997) 190 CLR 348 at 366 and 368. It was submitted that there was no rational way of reconciling the guilty verdicts on Counts 1 and 3 with the acquittal on Count 2, with the consequence that they should be set aside: Jones v The Queen (1997) 191 CLR 439. Importantly for present purposes, Gaudron, McHugh and Gummow JJ said in Jones that the acquittal on one count diminished the complainant's overall credibility, and added (at 453): "It is difficult then to see how it was open to the jury to be convinced beyond a reasonable doubt of the guilt of the appellant with respect to the first and third counts. There is nothing in the complainant's evidence or the surrounding circumstances which gives any ground for supposing that her evidence was more reliable in relation to those counts than it was in relation to the second count." 22This issue was examined in detail by this Court, constituted by Spigelman CJ, Wood CJ at CL, Grove, Simpson JJ and Carruthers AJ in R v Markuleski [2001] NSWCCA 290; 52 NSWLR 82. This Court rejected the proposition that in a pure word against word case involving a number of charges for sexual offences, a mixture of acquittals and convictions by a jury must inevitably be set aside. It is clear that all depends on the facts of the particular case (see especially at [65], [73] and [99] (Spigelman CJ, with whom Carruthers AJ agreed), [217]-[219] and [224] (Wood CJ at CL). The other members of the Court agreed with the analysis of principle by Spigelman CJ and Wood CJ at CL). 23In R v NEK [2001] NSWCCA 392 at [24], Priestley JA, with whom Sully J and Smart AJ agreed, said that: "Spigelman CJ's principal point in Markuleski was that Jones was not authority requiring courts of criminal appeal to regard mixed verdicts of acquittal and guilty, when all depended upon the evidence of a complainant, as necessarily showing inconsistency by the jury; Jones did not exonerate courts of criminal appeal from deciding upon claims of inconsistency in the light of a consideration of all the circumstances of the case." 24Sperling J, with whom Sheller JA and Adams J agreed, reviewed the authorities and concluded in R v Bonat [2004] NSWCCA 240 at [106] that: "There is no hard and fast rule. It all depends on the circumstances of the case." and "A primary consideration, in a case of inconsistent verdicts, is whether there is an acceptable explanation for differentiation as a matter of logic and reasonableness." 25A consideration of all the circumstances of this case demonstrates that it was open for the jury to find the appellant guilty on Counts 1 and 3, while acquitting him on Count 2. 26First, the notes on the victim's iPhone, which the victim regarded as important, included references to the conduct comprising Counts 1 and 3, but not that comprising Count 2, save arguably for the "faking to have my period" note. The jury was entitled to have regard to that difference in the corroborative documentary evidence in assessing whether the Crown had discharged its burden in relation to each of the counts on the indictment. 27Secondly, the victim was cross-examined on the basis that although she had made a note of the appellant touching her breasts, she had made no note of the digital penetration the subject of the second count. That same distinction between Counts 1 and 3 (which were squarely supported by the iPhone notes), as opposed to Count 2 (which was not), was raised by the appellant's counsel in his address to the jury. While he did so for the purpose of inviting the jury to disbelieve the victim's evidence in its entirety, it serves to confirm how it was open to the jury not to accept her evidence in so far as it supported Count 2. 28Thirdly, the distinctions referred to above are those discernable merely on the face of the transcript of evidence, and the documentary evidence. But what appears on the face of the written record of the trial is not the limit of the deference to be given to the jury, which saw the victim and the appellant give evidence and be cross-examined. For example, the victim's evidence concerning Count 2 involved the appellant suddenly removing her jeans while she was in bed under the blankets. That conduct is inherently less plausible than the conduct the subject of Counts 1 and 3. It may well be the case that the demeanour of either the victim or the appellant affected the jury's assessment of the relative cogency of their inconsistent testimony in relation to Counts 1 and 3 as opposed to Count 2. The decisions collected by Spigelman CJ in Markuleski at [72] reflect an acknowledgment of this limitation upon the appellate court. 29For all those reasons, it was open - indeed, amply open - for the jury to find that the appellant had touched the victim's breasts in 2008 and 2012 whilst finding that the Crown had not discharged its burden of proving the charge of sexual intercourse without consent in 2010 the subject of Count 2. Accordingly, I propose that the appeal against conviction be dismissed. Leave to appeal against sentence 30In his remarks on sentence, the judge found that the jury's verdict established that the assault constituting Count 1 took place in the victim's previous home in Quakers Hill, probably in her room in 2008, when she was 10 and he around 27 years old. The incident constituting Count 3 took place around four or five weeks before her interview with the police on 24 April 2012, in her bedroom. The appellant got the victim out of bed, touched her hands, brought her closer to him and put his hands on her breasts down the top of her T-shirt. The touching was for some minutes and involved squeezing the breasts inside her bra. The appellant said words to the effect of "Don't tell your parents or anyone, because you know I only do this because I love you". 31I deal with other aspects of the judge's remarks on sentence in connection with the grounds to which they relate. Proposed Ground One 32This ground is: "The sentencing Judge erred in not taking into account the applicant's assistance to the authorities." 33On 10 April 2012, the appellant made a witness statement to the effect that the victim's older brother had been sexually assaulted by the father of one of the victim's friends. In fact, it was the father of the friend to whom, on 19 November 2010, the victim had communicated by Facebook. There were two aspects to the statement. The first was that the appellant had been told by the brother about two years earlier that his sister's friend's father had come into the shower with him some three years earlier (when he was aged about 10); he said that the father's penis was erect. The second aspect of the statement dealt with events of late January 2012, two and a half months earlier, when the victim's brother told the appellant that he was scared to stay at his sister's friend's house because the father came into his room and touched his penis in the night. 34The sentencing judge had regard to the fact that the appellant made that statement. His Honour expressly relied upon the appellant's preparedness to give evidence in those other proceedings to apply (to use his Honour's words) "a substantially greater discount than would normally be available" by way of adjustment to the statutory ratio between the parole and non-parole periods. His Honour applied a ratio of 50%. 35However, his Honour did not apply s 23 of the Crimes (Sentencing Procedure) Act to discount the sentence for assistance to the police. There was no statement from the police assessing the statement's utilitarian value to the pending proceedings. Indeed, although a police officer familiar with the other investigation was asked about the statement during the course of the trial, she was not asked to express an opinion as to its utility. 36His Honour said that: "It does not seem to me, particularly absent any evaluation from the police, that it requires [or] justifies a specific discount. However, I do propose to take the assistance and the statement into account in a general way and specifically in terms of the offender's preparedness to be cooperative with the authorities in terms of his prospects for rehabilitation." 37The appellant contended that the failure to obtain a specific discount, in accordance with s 23(1), disclosed appellable error. He pointed out, correctly, that the language of s 23(1) was broadly worded, and extended where assistance was provided in proceedings relating to "any other offence". The Crown contended that this was not a case where the appellant was criminally involved in a matter as an informer witness, seeking a "Cartwright" discount (cf R v Cartwright (1989) 17 NSWLR 243), instead, he was merely undertaking his public duty by providing a "complaint" statement in an upcoming trial, and not entitled to a discount. 38It is not necessary to determine in this appeal whether the prima facie broadly worded language of s 23(1) applies to the statement provided by the appellant, although I am doubtful that s 23(1) can bear its ordinary literal meaning. It seems unlikely that on the true construction of s 23, a victim of a home burglary who reports the crime to the police years before himself offending can ask for that assistance to be taken into account under the section (that is the example given by RA Hulme J in RJT v R [2012] NSWCCA 280; 218 A Crim R 490 at [40]). The use sought to be made of s 23(1) by the appellant here is not nearly so extreme, yet the example indicates the difficulties which will, in an appropriate case, need to be confronted arising out of its broadly worded text. Those difficulties are also acknowledged by Basten JA (with whom Adams J agreed) in RJT at [6]. 39However, because it is not necessary to resolve those difficulties, it is inappropriate to do so. This ground can and therefore should be decided by upholding the reasoning of the sentencing judge that no sound basis had been established to warrant applying a discount. 40There was no evidence at all before the sentencing judge (or for that matter this Court) as to the value of the appellant's statement. It is easy to see that a statement by a man whose testimony had been rejected by a jury in a sexual assault case, directed to incriminating the father of the girl to whom the victim of his own assaults had sent a Facebook message tendered in his own trial, would be the subject of substantial attack were it relied upon by the Crown. It is certainly possible that the evidence was worthless. It is certainly possible that it is of slight assistance. It is also possible that it is of significant weight. To the extent that it bears any significant value, that will very much depend upon the testimonial and forensic evidence otherwise available to the Crown. 41Section 23(2) required the sentencing judge to consider the significance and usefulness of the statement and its truthfulness, completeness and reliability; however there was no way in which that task could meaningfully occur. Moreover, it is essential if s 23 applies for the sentencing judge to state with precision the discount applied (not least, so that if the future assistance is not forthcoming, the discount can be reversed: see R v GD [2013] NSWCCA 212). There was, on the material made available to the sentencing judge, no rational way in which that could be done by reference to assistance whose value was an entirely unknown quantity. 42To be clear, in the previous two paragraphs, I am not determining the value of the statement - as to that, this Court is as poorly placed as the sentencing judge. I am merely explaining why there was no error disclosed by the sentencing judge's conclusion that no basis for a discount under s 23 had been established. 43For completeness, I add that when the appeal was heard the Court was told that a further statement had been provided by the appellant in 2014. There was no evidence of this, or its value, nor was an application made to adduce fresh evidence. However, even if that had taken place, for the reasons given above the outcome would have been the same in the absence of any means of assessing its value. 44No error is disclosed in the approach adopted by the sentencing judge. I would not grant leave to agitate this ground. Proposed Ground Two 45Ground 2 is that: "The sentencing Judge erred in taking into account a breach of trust as an aggravating factor for both offences." 46The language of Ground 2 reflects that used in the sentencing remarks. Early in those remarks, the sentencing judge said that the victim's family, and particularly the victim's parents, clearly trusted the offender implicitly. Under the heading "Consideration", his Honour said: "Here, and in particular in relation to my consideration, I do not accept the submission that there was no breach of trust by the offender. That was essentially submitted on the basis that there was no handing over of responsibility by the parents of the victim to the offender. In my view, that is not a proper finding given the evidence of the victim's parents ... which I have separately reviewed, and the circumstances of their ongoing relationship, whereby the offender was effectively given the free run of the house. Even though there may be some ambiguity about whether the parents or either of them were home on either of the two occasions the subject of these counts, the fact is that the offender was, by virtue of his relationship, able to maintain his ongoing contact with the victim, which included either passing on messages from the parents from time-to-time, or being in the children's physical proximity and in their areas of the house, if not their bedrooms. As I have said, the freedom that he had included access to the victim's bedroom and to have ongoing discussions with her in a variety of situations." 47His Honour added that he accepted the victim's evidence that the appellant told her not to tell her parents what was going on. 48Under the heading "Breach of Trust", his Honour said: "Here, I need to look very closely at this aspect of the breach of trust. A breach of trust is not limited to a parental or spousal relationship - see R v MAK [2005] NSWCCA 369. Here the breach of trust, in my view, was primarily to the victim, but also to her parents. That position of trust was built up over a long period of time and included, for example, him going to the various homes of the victim's family. It is, in my view, that aspect which mandates a period of imprisonment from the point of view of both general and specific deterrence." 49It is clear from the closing words of that passage that the finding of "breach of trust" was significant in, if indeed not determinative of, his Honour's discretion to impose a custodial sentence. 50Taking a strict view, it might be argued that there is a difficulty here. The sentencing remarks reflect a departure from the language of the statute, seen in the recurring (albeit not invariable) use of "breach of trust". That reflected the submissions made to the sentencing judge, by the Crown and appellant, which employed that language interchangeably with that of the statute. That approach can lead to error. 51The aggravating factor which is required by s 21A(2)(k) of the Crimes (Sentencing Procedure) Act to be taken into account is: "the offender abused a position of trust or authority in relation to the victim". 52It is well established that a breach of trust is not sufficient to make out this aggravating factor. In Karl Suleman v R [2009] NSWCCA 70 at [22], Howie J, with the agreement of McClellan CJ at CL and Hislop J, said of s 21A(2)(k) that: "This aggravating factor is not made out simply because the victim trusted the offender for some reason or other ... The relevant factor is that there was at the time of the offending a particular relationship between the offender and the victim that amounted to 'a position of trust'. It is a special relationship existing between them and transcends the usual duty of care arising between persons in the community in their everyday contact or their business and social dealings." 53Earlier, it had been said in MAH v R; R v MAH [2006] NSWCCA 226 at [69] by Grove J, with the agreement of Hidden and Kirby JJ, in connection with a group of teenage friends two of whom were found by a jury to have killed a third because of jealousy: "A 'position of trust' does not equate with the mutuality of trust which exists between social associates such as within the close knit group disclosed in the evidence." 54Consistently with this, RS Hulme J, with whom Giles JA and Adams J agreed, dealt with nine convictions for indecent assault and sexual intercourse without consent of a child, in Smith v R [2011] NSWCCA 163. The offender was a friend of the victim's father, and from time to time father and victim stayed in the offender's house. His Honour said at [39]: "One factor that affected a number, if not all of the offences was that his Honour regarded the Applicant as having been in a position of trust. As is apparent from what I have said, I do not dissent from this view in the case of offences 7 to 9. However, as it would seem that the complainant's father was in the room, albeit asleep, when the other offences occurred, and there was no evidence to suggest that the Applicant had been given or undertaken any responsibility for the complainant, I see no basis for describing him as in a position of trust as that term is used in this area of the law. Certainly, his position in the case of offences 1 to 6 was not comparable with that of a teacher, babysitter or step-father. It is to be inferred that this error by his Honour influenced his assessment of the seriousness of each of offences 1 to 6." 55The appellant relied on the distinction explicit in that reasoning and submitted that there was error in the sentencing remarks, in that it was not proven beyond reasonable doubt that both offences were committed in circumstances where there was a "position of trust". 56The primary submission during the sentencing hearing was that "because there had been no handing over of responsibility ... there was no breach of trust". That submission was rejected, and in my view properly so. A position of trust may be abused even if there is no handing over of responsibility. However, the submission may well distract from the question posed by the statute, which is framed in different terms from that applied by the sentencing judge. 57Although it is desirable not to depart from the terms of the statute, I incline to the view that nothing of substance turns on this ground, for two reasons. First, it is clear law that remarks on sentence ought not to be subjected to minute scrutiny in search of any indication of error: see for example Fisher v R [2008] NSWCCA 129 at [24]. Secondly, it is plain that the appellant had known the victim all of her life, was a close friend of the family and had built up that relationship over a long period of time. There were occasions when she and her siblings were placed in his care (for example, he was asked from time to time to baby-sit the children). At least on those occasions, the appellant occupied a position of trust and responsibility. However, it was not established (and certainly, not established beyond reasonable doubt in accordance with R v Olbrich [1999] HCA 54; 199 CLR 270) that the offences occurred on such occasions. 58In short, the fact that the appellant was a trusted family friend who enjoyed access to the house, including the children's bedrooms, was highly relevant to the sentencing process. Even though it may be doubted, consistently with Smith, whether the appellant thereby occupied a "position of trust or responsibility" for the purposes of s 21A(2)(k), the fact that the appellant was trusted by the victim and her family was a central aspect to the assessment of the objective criminality of the offence. On a fair reading of his sentencing remarks, it was regarded as such by the judge. Let it be assumed that s 21A(2)(k) did not apply. It was still necessary, by reason of s 21A(1)(c), for the Court to have regard to "any other objective or subjective factor that affects the relative seriousness of the offence". If there was error, I am inclined to doubt that it made any material difference to the sentencing exercise. 59The approach to s 21A that I favour recognises the difficulties in applying the section, the deference that is properly to be given to sentencing remarks, often given ex tempore, and the need to avoid minute scrutiny for technical error. However, I acknowledge that the approach I favour may be seen to be more generous than some other decisions of this Court, including Smith. However, these points were not fully argued, and since it is not necessary in light of my conclusions in relation to proposed Ground 4 to reach a final view on this ground, I refrain from doing so. Proposed Ground Three 60This proposed ground is: "The sentencing Judge erred in assessing the objective seriousness of the offences". 61When addressing objective criminality, the sentencing judge said: "On the basis of the jury's verdict - as well as the acquittal on count 2 - I find that there was a brief contact on each occasion with the victim's breasts and no genital contact. It was invasive, but it was relatively transitory. What is important in that regard is the age difference between the offender and the victim, their differences in physical size and presence and the circumstances of what I regard as a breach of trust. That supports my finding that there was a relatively low level of criminality - in accordance with the decision of Smith v R [2011] NSWCCA 163 - although not at the absolute lowest level, as appears to be urged by the offender's counsel. Having regard to the circumstances of the offences, in particular the degree of touching involved, the time period involved, the age difference and the impact on the victim, the objective criminality is below mid range but above low range. What takes it above low range is the length of time involved between the two offences and the breach of trust, particularly given that the events occurred in the victim's home and in her bedroom. The offender was essentially taking advantage of a young girl and her family in her family home, and indeed in her bedroom on one occasion at least. The offences occurred on separate occasions, separated by some years. However, and I must specify this, the fact that there were two offences of the same nature essentially prevents a finding that they were isolated or one-off, random or opportunistic events." 62The appellant's submissions were focussed on the fact that, in addition to the "breach of trust", the matter which took the offences "above low range" was "the length of time between the two offences". 63A deal of "context evidence" was admitted at the trial. The victim gave evidence that the appellant was constantly touching her in sexual ways. He was not charged with this. His Honour stated specifically that: "I do not take into account any matters which are not connected to the two offences, nor where there is any connection with the more generalised comments in the statement which appeared to relate to at least some of the matters led by way of context evidence." 64It was entirely orthodox for the sentencing judge to admit context evidence to displace a submission that the offences were single, isolated events: R v JCW [2000] NSWCCA 209; 112 A Crim 466. That is what his Honour expressly said that he was doing in the concluding sentence of his remarks on objective criminality reproduced above. There was no suggestion that Counts 1 and 3 were representative, and there is no need to address the difficulties that arise in connection with such charges: see Giles v Director of Public Prosecutions (NSW) [2009] NSWCCA 308; 198 A Crim R 395. 65However, where the counts on which the jury convicted the appellant were brief contact with the victim's breasts separated by a period of four years, what is to be made of the proposition that it was the length of time involved between the two offences which (in addition to the breach of trust) took the conduct above the low range? The appellant submitted that the assessment of objective criminality was coloured by an unarticulated finding that similar conduct was recurring throughout those four years. If so, then that would be quite wrong, for Counts 1 and 3 were not representative: see for example DRS v The Queen [2012] VSCA 276 at [19]-[20]. 66However, that was expressly denied by the sentencing judge elsewhere in his remarks, and I would not readily conclude that that was what occurred. If confirmation be necessary, it is confirmed by the exchanges that took place during the course of submissions. Although on the first day of the sentencing hearing, the Crown made a written submission that regard could be had to the material consideration that "the facts reveal behaviour which was part of a wider pattern of conduct", the sentencing judge made it clear in argument on the second day that he was not adopting that approach: "Mr Crown it seems to me that the only relevance of that context evidence is to mean that the offender cannot plead that these were ... isolated offence[s]." 67Regard may on occasion be had to exchanges in the course of submissions where they can assist in elucidating abbreviated statements in the remarks on sentence: Hughes v R [2008] NSWCCA 48; 185 A Crim R 155 at [33]. In the present case, that exchange confirms to my mind that any ambiguity in his Honour's reference to the length of time between offences was not indicative of an improper conclusion of greater criminality. Other possibilities are available (such as that the offending conduct did not take place over a short, opportunistic period). Although there is no articulation as to the reasoning process whereby the four year gap led to a conclusion of greater objective criminality, in light of the express statements by the sentencing judge, I do not consider that error has been demonstrated. I would not grant leave to raise this ground. Proposed Ground Four 68Ground 4 is that the sentence is manifestly excessive, although, as will be seen below, included within that ground is a much narrower complaint based on his Honour's reliance on sentencing statistics from the Local Court. 69On the broad formulation that the sentence imposed was manifestly excessive, as noted above, his Honour expressed the view, in consecutive sentences, that there was a "relatively low level of criminality" and that "the objective criminality is below mid range but above low range". The starting point is to assess the salient facts against the maximum applicable sentence and the standard non-parole period: Wong v R [2010] NSWCCA 160 at [14]. Given the maximum penalty of 10 years with a standard non-parole period of 8 years, the difficulties faced by the appellant on this ground are obvious. They are also well recognised. Indeed, the sentencing judge referred to RS Hulme J's description of "the absurd relativity" between the maximum and the standard non-parole period in BT v R [2010] NSWCCA 267. 70On the narrower complaint, the sentencing judge said, twice (Remarks on Sentence, pp 8 and 19), that he had considered the sentencing statistics for such offences in the Local Court as well as the District Court. His Honour said that he had been assisted by submissions, both oral and in writing from counsel, and that he had examined the Public Defender's website. His Honour said that the sentences he imposed were within the range of comparable sentences for the relevant time period for the same offences. However, his Honour otherwise did not in his sentencing remarks disclose the statistics to which he had regard. He said: "I do not propose to list all those comparable cases. To the extent that they are comparable, they [are] demonstrated in the transcript. I have also considered, as I have said, the JIRS statistics for District Court and Local Court sentences for these offences and consider the sentences I am proposing are appropriate exercises of my discretion." 71It is appropriate therefore to examine the sentences in fact imposed for aggravated indecent assaults, which is what the sentencing judge expressly said he had done. For all their limitations, sentencing statistics can and should provide guidance as a useful yardstick: Hili v The Queen [2010] HCA 45; 242 CLR 520 at [54]; Barbaro v The Queen [2014] HCA 2; 88 ALJR 372 at [41]. (a) Sentencing information provided to the judge by the parties 72The record available to this Court reveals the following. First, the written submissions of the appellant at trial provided five examples of suspended sentences (Exhibit S1, paragraphs 15 and 16). Secondly, the written submissions of the Crown gave no examples (Exhibit S2). However, the Crown tendered seven pages extracted from the JIRS database (Exhibit S12, although described as S14 in the transcript). There were two pages of s 61M(1) penalties for higher courts from April 2006 until March 2013, and five pages of s 61M(2) penalties for higher courts from January 2009 until March 2013. 73The Crown's oral submissions did not descend to the level of comparable sentences at all (this is not intended as a criticism). The Crown confirmed that a suspended sentence was within range: "So at the end of the day, although it is a matter within range, it is a matter for your Honour. I'm sorry I can't be any more helpful than that". Counsel for the appellant addressed, very briefly, on some of the comparable decisions. 74The Public Defender's website does not purport to provide a comprehensive summary of decisions. In respect of s 61M(1) and (2) it is confined to decisions of the Court of Criminal Appeal, and it is far from exhaustive. It is not of present assistance. (b) The JIRS database 75Accordingly, I turn to the JIRS database. In 2009, s 61M(2) was amended. Formerly, an element of the offence created by the subsection was that the victim was less than 10 years; it now provides that the victim is less than 16 years. In relation to Count 3, it is plainly necessary to confine attention to the period from 2009. 76When accessed in March 2014, the JIRS sentencing database records 169 sentences imposed by the Local Court from October 2009 until September 2013 for aggravated indecent assault contrary to s 61M(2). Of those, 72 (or 43%) resulted in a prison sentence. However, a majority of 97 out of 169 (or some 57%) resulted in a suspended sentence (44), a bond (48), a community service order (3) or a fine (2). Overall, 4 out of every 7 sentences imposed by the Local Court were non-custodial. 77If attention is confined to the 53 sentences imposed by the Local Court where there was a plea of not guilty or no plea, the pattern is the same: 22 (42%) resulted in a prison sentence, and 31 (58%) resulted in a suspended sentence (14), a bond (16) or a fine (1). 78In the District and Supreme Courts, the JIRS sentencing database records 57 cases for aggravated assault contrary to s 61M(2), of which 40 (70%) were a prison sentence, and 17 (30%) a suspended sentence or a bond. 79In relation to Count 1, there is a difficulty. Had the amendment to s 61M taken place six months earlier, it may be inferred that the appellant would have been charged under s 61M(2). It was not possible to do so, because in 2008 s 61M(2) applied only where the victim was less than 10 years old. One approach would be to apply older sentencing statistics for s 61M(1), but these are not readily available on JIRS. Another approach would be to have regard to the sentences imposed under s 61M(2) after 2009 as a proxy for the s 61M(1) conviction, being conscious (as was the sentencing judge) that the offence upon the victim when aged 10 is more serious than when she was aged 14. A third would be to consider the sentences imposed under s 61M(1), being conscious that the aggregated data does not disclose whether the offence was committed before or after 2009. 80As it turns out, the sentencing data means that the complexities do not arise, because the s 61M(1) data is substantially the same. The JIRS sentencing database records 108 sentences imposed by the Local Court from October 2009 until September 2013 for aggravated indecent assault contrary to s 61M(1). Of those, 39 (or 36%) resulted in a prison sentence. However, a majority of 69 out of 108 (or some 64%) resulted in a suspended sentence (37), a bond (31), or a bond (1). 81If attention is confined to the 35 sentences imposed by the Local Court where there was a plea of not guilty or no plea, the pattern is once again the same: 13 (37%) resulted in a prison sentence, and 22 (63%) resulted in a suspended sentence (12), a bond (9) or a bond (1). 82It is not possible to determine what Local Court statistics his Honour was relying on. It is not clear whether statistics up to September 2013 would have been available to him in December 2013. However, there is no reason to think that if they were only available until March 2013, there would be any significantly different pattern. 83During the sentencing hearing, the Crown fairly acknowledged that a suspended sentence was available. The sentencing judge found that there was a "relatively low level of criminality" and that "the objective criminality is below mid range but above low range". The charged conduct occurred on two occasions, separated by four years, when the offender touched the victim's breasts, briefly, while she was clothed, without any threatened or actual violence. It was very wrong of him to do this to a child, but given the range of conduct to which s 61M(1) and (2) apply, it was certainly below mid range. 84It was common ground that the proceedings for Counts 1 and 3 could have been disposed of in the Local Court, and his Honour said that he took that into account, as he was required to do: R v Palmer [2005] NSWCCA 349 at [15] and Bonwick v R [2010] NSWCCA 177 at [43]-[45], even though so far as the appellate record in this Court discloses, the Crown did not supply those Local Court statistics. (c) The parties' supplementary submissions after the hearing 85After judgment was reserved, the Local Court statistics were provided to the parties, who were invited (on 25 March 2014) to file further submissions. Both parties did so (on 30 and 31 March 2014). The Crown noted, correctly, that "the largest single disposition of matters was dealt with by way of full-time custody, even though that category is between 37 and 43%". The Crown added that the statistics revealed little about the matters they dealt with, and "therefore can only be of limited utility to this court". 86The appellant submitted that the JIRS statistics suggested that sentences other than full-time custody had been imposed in more than 50% of the cases in the past, and that because the objective seriousness of this case was towards the lower end of the range, they suggested that a custodial sentence was not within the boundaries of a correct exercise of the sentencing discretion. He said: "When one takes into account (i) the potential wide range of circumstances covered by the offence, (ii) the low level objective seriousness of these offences, (iii) the Local Court JIRS statistics showing that more than half of cases result in no actual imprisonment for the full range of offending conduct, it is submitted that the 'statistics' do not support his Honour's ... comment regarding the exercise of the sentence discretion. Quite the opposite, it is submitted the statistics support the applicant's argument that the sentencing discretion has miscarried." (d) Consideration 87It is settled law that a "substantial discretion" is left to sentencing judges, that there is no single correct sentence, that this Court's own opinion may not be substituted for that of the sentencing judge merely because it would have exercised its discretion differently, and, above all, that the appellant must demonstrate that the sentence was "unreasonable or plainly unjust": the authorities are collected in Vuni v R [2006] NSWCCA 171 at [33] and Matthews v R [2013] NSWCCA 187 at [151]-[153] and [197]. 88I would reject the broad ground that the sentence was manifestly excessive. The appellant has failed to discharge the heavy burden this ground entails. 89However, that does not resolve the narrow aspect of this ground, based on the repeated reliance by his Honour on sentencing statistics including from the Local Court. Those aspects of his Honour's remarks disclose material error. As counsel for the appellant submitted, the findings of the sentencing judge about level of criminality are impossible to reconcile with the sentences imposed by the Local Court, despite the statements of the judge to the contrary. This is so for two reasons. 90First, even if the sentences imposed by all courts since 2009 for s 61M(2) convictions are aggregated, half of the sentences are non-custodial. If comparison is to be made for the legitimate purpose of establishing a yardstick, then it should be made with all the data, which is what the sentencing judge said he was doing, although it seems that only sentencing data for higher courts, and not the Local Court, was tendered at the hearing. The custodial sentence imposed cannot readily be reconciled with the "yardstick" to be discerned from the sentencing data, given that objective seriousness was found to be below mid range. That proposition can safely be advanced without any knowledge of the particular facts of any of the individual sentences collected in the statistics, because it is a proposition about the data as a whole and there are a large number of sentences imposed disclosing a similar pattern. Yet the judge gave no other explanation of how he came to the view that the sentence he imposed was "within the range of comparable sentences" for the same offences. 91Secondly, and more compellingly for present purposes, is the fact that the judge expressly said that his sentence was appropriate having regard to the sentencing statistics in the Local Court: "I have considered the sentencing statistics for such offences in the Local Court. Although it is difficult to extract precise or analogous details from the statistics and to compare them with the like matters in the District Court, the sentences I am considering are within the range of comparable sentences for the relevant time periods, for the same offences." 92The remarks on sentence do not disclose what emerged from the Local Court statistics to which his Honour referred. Nor is it clear precisely what difficulties were encountered by his Honour extracting "precise or analogous details from the statistics". However, what is clear is that the sentence in fact imposed requires explanation to reconcile it with the sentencing statistics from the Local Court. 93I reject the Crown's submission that the reconciliation is that the largest single category of sentence imposed by courts is a custodial sentence. That is a correct description of the data, but one that is presently unhelpful. It reflects the happenstance that the large subclass of non-custodial sentences as presented by JIRS is itself subdivided into suspended sentences, bonds and fines. 94The fact that the most frequently occurring subclass of sentence is a custodial sentence, according to the classification of sentences employed by JIRS, is irrelevant. The question of relevance is much simpler: are most offenders, or for that matter most offenders who plead guilty, who are sentenced in the Local Court, sent to prison? The answer is very clear: in the Local Court, majorities of offenders ranging between 57% and 64% are not sent to prison, while minorities between 36% and 43% are. That is a much greater disparity than the 45:55 split regarded as significant (albeit in a very different context) in Baumgartner v Baumgartner (1987) 164 CLR 137 at 150. Irrespective of whether an offender is found guilty of the offence in s 61M(1) or s 61M(2), and irrespective of whether the offender has pleaded guilty, only a minority of offenders receive prison sentences from the Local Court, and significant majorities of around half as many again do not. That is the fact emerging from the sentencing statistics which clashes with his Honour's remarks on sentence. 95The sentencing judge followed the approach of this Court in R v Egan [2013] NSWCCA 196 at [79]. Having determined, with respect correctly, that no penalty other than imprisonment was appropriate, and the length of the sentence, the third question is "whether the sentence can, and should, be suspended". The sentence being less than two years, it could be suspended. If the sentence was, as his Honour said it was, consistent with the sentencing statistics, then either it should have been suspended, or his Honour needed to explain why conduct which was of a relatively low degree of criminality was being punished as if it were of a relatively high degree of criminality. Error is disclosed by his not doing so. 96The reasoning I have employed in reaching that conclusion is analogous to that adopted by this Court in Mitchell v R [2013] NSWCCA 318 at [27]-[31] (RA Hulme J, Ward JA and Harrison J agreeing). I acknowledge that if the position were less clear-cut, it would not be available: cf the rejection in LB v R [2011] NSWCCA 220 at [29]-[32]. Caution must be employed in the use of statistics, as the High Court has repeatedly insisted. 97But in this particular case, there is ample data: cf Hili at [48], and the sentencing judge's express but otherwise undeveloped reliance on the sentencing statistics discloses material error of fact. I propose that there be a grant of leave in relation to this ground, as well as Ground 2, and the appeal against sentence allowed. 98It will be evident from the foregoing that I am of the view that some other sentence than that imposed by Knox DCJ is warranted: Criminal Appeal Act 1912 (NSW), s 6(3), so as to enliven this Court's power to resentence. Resentencing 99It falls to re-sentence the appellant. The appellant has served some five weeks in prison. He will also have two convictions for indecent assault on his record. He is a young man of otherwise good character, with no prior convictions, with employment and otherwise good prospects. The sentencing judge found that he was unlikely ever to come into contact with the victim again, and found special circumstances which were, in his words, "substantially greater than would normally be available". Since mid-January, he has been on bail - a period of some two and a half months which, pursuant to s 18(2) of the Criminal Appeal Act does not count as any part of any term of imprisonment. That said, it is not inappropriate in the circumstances of this case to observe that a term of the bail required the applicant to have been of good behaviour, as well as reporting to Parramatta Police Station each Monday, Wednesday and Friday. 100Like the sentencing judge, I am of the view that no penalty other than imprisonment is appropriate. The crimes are serious, as reflected in the maximum imposed by the Legislature. Having regard to the fact that the appellant served just over five weeks of the first sentence imposed by the judge, and one week of the second, and has been subject to the reporting and good behaviour terms of his bail since 17 January 2014, slightly shorter sentences are appropriate than were originally imposed. Those sentences are capable of being suspended and, for the reasons set out above, should be suspended pursuant to s 12 of the Crimes (Sentencing Procedure) Act. Because they are suspended, I proceed on the basis that commencement dates should not be specified: R v JW [2010] NSWCCA 49; 199 A Crim R 486 at [218]. 101The practical effect is that the appellant will be at risk of imprisonment, if he should re-offend, for a period which is slightly longer than the sentence imposed by the sentencing judge. 102Accordingly the orders I propose are: (1)Appeal against conviction dismissed. (2)Grant leave to appeal against sentence, and allow the appeal. (3)Quash the sentences imposed on the appellant by Knox DCJ on 10 December 2013. (4)Sentence the appellant on Count 3 to imprisonment for a term of 8 months. (5)Suspend execution of the sentence referred to in order (4) for 8 months. (6)Direct that the appellant be released from custody in respect of that sentence on condition that he enters into a good behaviour bond for 8 months. (7)Sentence the appellant on Count 1 to imprisonment for a term of 14 months. (8)Suspend execution of the sentence referred to in order (7) for 14 months. (9)Direct that the appellant be released from custody in respect of that sentence on condition that he enters into a good behaviour bond for 14 months. 103BUTTON J: I agree with Leeming JA. 104RS HULME AJ: I agree with the orders proposed by Leeming JA and, subject to the following remarks, with his Honour's reasons. 105Knox DCJ's reference to a position of trust and his Honour's frequent references to breaches of trust lead me to think that his Honour tended to treat those breaches as an abuse of a position of trust, a factor which s 21A of the Crimes (Sentencing Procedure) Act lists as an aggravating factor. That the two circumstances are not identical is made clear in MAH v R [2006] NSWCCA 226 at [69] and Smith v R [2011] NSWCCA 163. 106Even if this is to misunderstand his Honour's approach, my impression from his Honour's remarks is that he gave the fact of a breach of trust - and the appellant's conduct undoubtedly answered this description - more weight than it merited. Thus after referring in the two immediate preceding sentences to "breach of trust" and "position of trust," his Honour observed, "it is, in my view, that aspect which mandates a period of imprisonment from the point of view of both general and specific deterrence." 107A little later his Honour observed: "What takes (the objective criminality) above low range is the length of time involved between the two offences and the breach of trust, particularly given that the events occurred in the victim's home and in her bedroom." 108I am unable to accept that the length of time involved between the two offences - some two years - operated so as to increase the appellant's criminality beyond the mere commission of two offences and contribute to his offending moving above the low range. In my view the learned sentencing judge erred in so treating the time interval. 109Thus in my view there was error, additional to that referred to by Leeming JA in the sentencing of the applicant. ********** 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: 17 April 2014