Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: DV v R [2017] NSWCCA 276 Hearing dates: 25 September 2017 Date of orders: 23 November 2017 Decision date: 23 November 2017 Before: Hoeben CJ at CL at [1]; Latham J at [241]; N Adams J at [250] Decision: (1) Leave to rely upon conviction ground of appeal 1 is refused. (2) Leave to rely upon conviction ground of appeal 2 is granted but the appeal is dismissed. (3) Leave to appeal against sentence granted but the appeal is dismissed. Catchwords: CRIMINAL LAW – conviction and sentence appeals – applicant convicted of twelve out of fourteen charges – eight counts of sexual intercourse with a child and four counts of aggravated indecent assault – whether error in judge's directions as to complaint – whether miscarriage of justice occasioned by absence of fresh evidence due to absence of important evidence – whether evidence fresh – whether evidence credible – whether a significant possibility that reasonable jury would have acquitted applicant – evidence not fresh – evidence not credible – no significant possibility that jury acting reasonably would have acquitted the applicant – conviction appeal dismissed – SENTENCE APPEAL – whether proper assessment of objective seriousness of offences – whether aggregate sentence was manifestly excessive – leave to appeal against sentence granted but sentence appeal dismissed. Legislation Cited: Crimes Act 1900 (NSW) ss 59, 61, 66, 78 Crimes Amendment (Sexual Offences) Act 2003 (NSW) – Schedule 1 Crimes Legislation Amendment (Child Sex Offences) Act 2015 (NSW) Crimes (Sentencing Procedure) Act 1999 – ss 21A, 53A Criminal Appeal Rules (NSW) Evidence Act 1995 (NSW) – ss 66(1) and (2) Cases Cited: AK v R [2016] NSWCCA 238 AL v Regina [2017] NSWCCA 34 ALS v R [2013] NSWCCA 63 Aouad and El-Zayat v R [2011] NSWCCA 61 BIP v R [2011] NSWCCA 224 Bland v R [2014] NSWCCA 82 Cahyadi v R [2007] NSWCCA 1; 168 A Crim R 41 Chamseddine v R [2017] NSWCCA 176 Delaney v R; R v Delaney [2013] NSWCCA 150 Dent v R [2017] NSWCCA 166 Cook v R [2010] NSWCCA 191 Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 Franklin v R [2016] NSWCCA 319 Gal v R [2015] NSWCCA 242 Hili v The Queen; Jones v The Queen [2010] HCA 45; 242 CLR 520 Hong v Regina [2009] NSWCCA 242 House v The King [1936] HCA 40; 55 CLR 499 IMM v The Queen [2016] HCA 14; 257 CLR Ith v R [2012] NSWCCA 70 JM v R [2014] NSWCCA 297 Kentwell v R (2014) 252 CLR 601; [2014] HCA 37 Khoury v R [2011] NSWCCA 118 Magnuson v R [2013] NSWCCA 50 Markarian v The Queen [2005] HCA 25; 228 CLR 357 Mickelberg v The Queen (1989) 167 CLR 259; [1989] HCA 35 MLP v R [2014] NSWCCA 183 MRW v R [2011] NSWCCA 260 Papakosmas v The Queen [1999] HCA 37; 196 CLR 297 R v Abou-Chabake [2004] NSWCCA 356, 149 A Crim R 417 R v Abusafiah (1991) 24 NSWLR 531 R v Brown [2012] NSWCCA 199 R v Ejefekaire [2016] NSWCCA 308 R v Fuge (2001) 123 A Crim R 310 R v Nakash [2017] NSWCCA 196 R v PGM [2008] NSWCCA 172 Ratten v R [1974] HCA 35; 131 CLR 510 Simpson v R [2014] NSWCCA 23 Tran v R [2014] NSWCCA 32 Van Beelen v The Queen [2017] HCA 48 WC v R [2016] NSWCCA 173 Category: Principal judgment Parties: DV – Applicant Regina – Respondent Representation: Counsel: H Dhanji SC – Applicant Ms H Roberts - Respondent Solicitors: S Radburn – Applicant Solicitor for Public Prosecutions – Respondent File Number(s): 2015/017254 Publication restriction: Non-publication order in relation to the name of the complainant and any matter that can identify the complainant. Decision under appeal Court or tribunal: District Court of NSW Jurisdiction: Criminal Date of Decision: 1 July 2016 Before: King SC DCJ File Number(s): 2015/017254 Judgment 1. HOEBEN CJ at CL: Offences and sentence The applicant was tried before Judge King SC (the trial judge) and a jury for 14 offences of sexual and indecent assault upon a single complainant, ED. The indictment contained eight counts of sexual intercourse with a child aged between 10 and 14 years in circumstances of aggravation, namely that she was under the authority of the applicant, contrary to s 66C(2) of the Crimes Act 1900 (NSW), and five counts of aggravated indecent assault upon a person under 16 contrary to s 61M(1) of the Crimes Act and one count of aggravated indecent assault upon the complainant when she was over the age of 16. 1. The trial commenced on 26 April 2016 and on 9 May 2016 the jury returned verdicts of guilty to Counts 1 – 12 and verdicts of not guilty to Counts 13 and 14. 2. The applicant was sentenced to imprisonment with a non-parole period of 12 years, commencing 9 May 2016 and expiring 8 May 2028, with a balance of term of 4 years expiring 8 May 2032. The earliest date on which the applicant will be eligible for parole is 8 May 2028. 3. The applicant has appealed against his conviction and seeks leave to appeal against his sentence. 4. The grounds of appeal against conviction are: Ground 1 – A miscarriage of justice was occasioned as a result of the trial judge's directions to the jury in relation to the use that they could make of the evidence of complaint. Ground 2 – A miscarriage of justice was occasioned due to the absence at trial of evidence which has since become available. SUMMARY OF CROWN CASE 1. The complainant ED was born in 1996. Her mother is KD. Her parents separated when the complainant was about two years old. The mother began dating the applicant in 1999 or 2000. On 27 October 2001 the mother and the applicant were married. The complainant was then aged five. Thereafter, the applicant became the complainant's stepfather. In 2002 KD gave birth to a son, S. The applicant is the father of S. In about 2006 the family moved to a four bedroom house in Ballina and the complainant had her own bedroom. 2. The Crown case was that between 2007 and 2014 the applicant sexually assaulted the complainant. On 22 October 2014 he was arrested by police and charged with the 14 counts on the indictment. 3. Counts 1 to 12 inclusive on the indictment were alleged to have occurred between 1 August 2007 and 31 January 2008 when the complainant was 11 years old. Count 13 was alleged to have occurred when the complainant was either 10 or 11 years old between 8 August 2006 and 8 August 2007. Count 14 was alleged to have occurred when the complainant was aged 17 years, between 8 August 2013 and 8 August 2014. THE EVIDENCE AT TRIAL Count 1 – Aggravated sexual intercourse 1. The complainant had her own bedroom at the front of the house in Ballina. In 2007 she was aged 11. Towards the end of 2007, either in November or December, the complainant recalled a night when she was asleep in the bed that her mother and the applicant shared. Her mother was not at home because she was working. The complainant went to sleep in that bed because KD was away and she was scared of the dark. The applicant told her that she could come and stay in that bed for the night. 2. The complainant was sleeping on her mother's side of the bed because she felt most comfortable there. She was wearing a cotton style nightie and a pair of underpants. She awoke "to the feeling that someone had their hands down my pants." She was lying on her back in the bed, the light was not on and it was dark. She heard the applicant sniff and exhale. He was close to her lying on his right side facing towards her and she could feel the heat of his body generally. He moved a couple of fingers in a circular motion in her vagina and inside the lips of her vagina. This continued for about five minutes. 3. The complainant went completely stiff. She sucked in a large breath and turned slightly away from the applicant. He asked her if she was awake. She did not respond. She was too scared to say anything. She did not want the applicant to be cranky with her so she kept quiet and kept her eyes closed. She rolled to her side and as she did this the applicant took his hands out from her underpants. She then curled up, pulled her knees up to her chest and put her hands close to her chest. She felt "completely afraid and terrified of what she just experienced". 4. The applicant remained on the left side of the bed for the rest of the night. In the morning the complainant went to the toilet and thought about what had happened the previous night. She went into the applicant's bedroom and sat on the edge of the bed and confronted him about what had occurred. "Complainant: Do you know what you did last night? Were you asleep or dreaming? Applicant: What are you talking about? Complainant: About last night, you know what I mean? Applicant: I thought you were your mum. Don't tell mum, because it was just an accident." (T.51.20, T.52.12) The complainant then left the applicant's bedroom and returned to her room. 1. The complainant did not tell her mother what had happened because the applicant said it was an accident. "Q. Why didn't you tell her? A. Because I didn't - DV had told me not to. He told me that it was just an accident and I was just going to try and let it go, and I was afraid of the consequences as well. … A. Well, I wasn't quite sure as to how mum was going to react or if DV was going to be angry at me for telling mum." (T.53.4, T.53.12) Count 2 – Indecent assault 1. About five days after the first episode, another incident happened when the complainant was in her bedroom. It was about 7am and she was still in her pyjamas. The applicant came into the bedroom and picked her up by placing his hands under her armpits. He held her at his waist. He was standing. She had her arms wrapped around his neck and shoulders and her legs were wrapped around his waist. 2. The applicant had previously picked her up in this way. She thought it was a cuddle to say good morning. He said to her "Jeez, you smell fresh." There was nobody else in the vicinity when he said this. She thought that he meant she smelt nice or good, like she had had a shower, something like that. She said "What do you mean?" The applicant replied "It means your vagina smells because you're horny" (T.65.32). The complainant did not know what he meant by that. She felt quite embarrassed and confused. He then said "Give me a kiss". The complainant leaned in and gave him a quick peck on the lips. The applicant said to her "No, properly like this." He then leaned in and kissed her with an open mouth. He opened and closed his mouth and put his tongue into her mouth. He had never done this to her before but she had seen him with her mother and it was the way that he kissed her. The complainant stiffened, pulled away and said "Put me down". Count 3 – Indecent assault 1. The applicant put the complainant down. She crawled into her bed so that she was lying on her right side facing towards the wall away from the applicant. He asked her if he could have a cuddle. She was scared and did not want to have any arguments with him and said yes. He then got into her bed and they were both underneath the covers. He was lying on his right side and was very close to her. "He placed his left hand over my mid-section and was close enough that I could feel his penis on my back and his body heat. I could feel him right up against me". 2. The complainant felt this on her lower back. "I felt a hard, it just kind of felt like a little, like a lump on my back ... it was very abnormal, I'd never felt it before". "It was hard and it was squishing into my back, I could feel it pressing into my back" (T.67.37). The applicant was not moving at this time. He remained in that position for about five minutes. He then got out of bed and left the room. 3. Neither the applicant nor the complainant said anything while this was happening. After the applicant left the room the complainant continued to lie in her bed, probably for about half an hour. It was not a school day but a weekend. The complainant was upset and in shock that the applicant had done this again. She remembered crying. It reminded her of what had happened the last time. She was thinking about her mum and whether she was going to tell her or not. She was afraid of the consequences and the possibility that her mother would hate her and not love her anymore. After getting out of her bed she went to the kitchen and had some breakfast. She did not see the applicant, who had gone back to bed with her mother. Count 4 – Aggravated sexual intercourse 1. The next incident occurred about a week or so later. Around mid-afternoon, both she and the applicant were lying on the lounge together watching the cricket on television. The applicant was "kind of lying in front of her". Her mum was in the bedroom having a sleep with her little brother. The complainant was lying on her left side on the lounge with her hands under her face and was dozing off, when the applicant woke her. "He had his hand down my pants and he was using a couple of fingers in a circular motion on my vagina" (T.72.40). While he was rubbing her vagina, the applicant asked "Does that feel good?" The complainant did not respond. She tried to move her pelvic section away from him. 2. The applicant rubbed more intensely, faster and harder. His breathing was quite short, fast and heavy. During the incident the applicant moved his hand and pushed it against her right thigh to make her open her legs further. Her right leg moved slightly as a result. The incident lasted for a couple of minutes. The complainant froze and went completely stiff. She did not say anything to the applicant. She felt disgusted, sad and quite angry. She remained on the lounge but moved as far away from the applicant as possible. There was nobody else in the vicinity at the time. When her mother got up from her nap she did not say anything to her. The applicant was next to her at the time. She also did not tell her mother anything when she saw that she was alone outside the house having a cigarette because she was afraid of the consequences. Counts 5 and 6 – Indecent assault 1. A few days later, in late November or early December at about midday, the complainant was seated in the lounge room with her younger brother, S, who was aged about five. The applicant stood at the door to his bedroom and said "Come here". She did not know why the applicant was calling her to go into his bedroom. He motioned with his hand to come into the bedroom. At the time her mother was not home and most likely working. The bedroom had been re-decorated since the first incident. The bed had been moved to the back of the room away from the front door. The curtains were changed and the room and bedhead had been repainted. 2. The complainant walked into the bedroom and sat on the bed. The applicant closed the door and locked it with the slide lock. He was wearing a pair of boxer shorts and nothing else. The complainant lay on the bed on her back and the applicant put on a DVD. He then lay next to her. A pornographic movie came on the screen. The people in the movie started to undress and have sex. The applicant said "Kiss me like before". The complainant stayed still while the applicant leaned in and kissed her with an open mouth. He stuck his tongue in her mouth (Count 5). 3. The complainant lay there trying to not kiss him back. She was scared and confused. The applicant "grabbed my left hand and placed it on top of his boxer shorts and was making me stroke his penis up and down on the outside of his boxer shorts" (T.80.36). When he placed her hand on the front of his boxer shorts in the area of his penis he had an erection. "He was breathing really heavily and short and fast and doing the sniff and exhale thing that he does" (T.81.17) (Count 6). Count 7 – Aggravated sexual intercourse 1. The applicant said "I want you to do something to me. I want you to give me head". The complainant did not know what that meant but assumed it was a sexual thing and replied "I don't want to". He said to her "You only have to do it for two minutes" and removed his boxer shorts. He did not have any underwear on. He was lying on his back on the left hand side of the bed. 2. The complainant saw the applicant's erect penis. "He guided my head towards his penis and pushed slightly, both his hands were on the back of my head. I opened my mouth and his penis went into my mouth. I felt very sick and disgusted." (T.82.28) His penis was in her mouth for about two minutes. The applicant still had his hands on the back of her head and he was breathing really heavily. She was moving her head up and down because his hands were on the back of her head, pushing slightly, making her head move up and down"(T.82.47). Count 8 – Aggravated sexual intercourse ; Count 9 – Indecent assault 1. After about two minutes, the complainant pulled her head back and the applicant guided her to lie on the bed next to him. He then said "I want to do something to you". The applicant started to remove the complainant's underpants and moved his face and mouth close to her vagina. The complainant sat up because she felt very uncomfortable. The applicant told her to "just lie back and relax". 2. The applicant placed his hand on her stomach and pushed her back lightly so that she lay back down on the bed. He then started using his tongue inside her vagina. The complainant placed a pillow over her face and pushed it down as hard as she could. She also squeezed her eyes shut. The applicant's hands were around her hips and bottom. He did this for several minutes until she felt a very intense feeling in her vagina (T.83.10 – 84.35) (Count 8). 3. The complainant said that she placed the pillow over her face and pushed down because she did not want to associate the feeling of what she was feeling with DV. It just felt wrong. She was trying to take herself away from the situation. The applicant stopped after a few minutes and then crawled on top of the complainant who was still lying on her back. He touched her breasts with his hands and mouth. The complainant could not recall what had happened to her clothing but her underwear had been taken off and she was naked. This lasted a few moments before the applicant said "Does that feel good?". The complainant replied "I can't really feel anything". The applicant then said words to the effect "Well that's weird because your mum's are so sensitive" (T.88.45) (Count 9). Counts 10, 11 and 12 – Aggravated sexual intercourse 1. While the applicant was touching her breasts he was facing towards her and was supporting himself with his right hand and his knees. He had no clothing on and the complainant was able to see his penis. He had his left hand around the penis and she noticed that it was erect. The applicant rubbed his penis on the complainant's vagina and inside the vagina lips, moving it up and down. The complainant felt a very intense feeling and thought that what was happening was wrong (T.89.25 – 89.47) (Count 10). 2. While the applicant was doing this he said to her "I bet you haven't seen a penis this close to you before. I've got a big dick don't I?" The complainant did not reply. The applicant said to her "Give me head again" (T.90.27). The applicant then moved on the bed and guided the complainant's head to his penis and put it in her mouth again. He placed both his hands behind her head and pushed down on it. The complainant estimated that she had his penis in her mouth for a couple of minutes (T.91.1) (Count 11). 3. The applicant moved slightly and the complainant moved away from him so his penis was no longer in her mouth. She lay back on the bed on her back. The applicant was stroking his penis vigorously over the top of her and was making a soft grunting noise that she had not heard before. He was breathing very heavily and then he ejaculated and it went all over her stomach. It was a clear off-white fluid that she had never seen before. She wiped it off with a towel which was next to the bed. The applicant then said "I want to try something" (T91.47). He rubbed the complainant's vagina with his fingers. After a few moments he inserted his little finger inside her vagina. The applicant was using his left hand and pushed it inside her vagina in a slow motion. The complainant asked him to stop because it was hurting and she did not like the feeling (Count 12). 4. The complainant's little brother, S, knocked on the door and rattled the door handle and said "What are you guys doing?" The applicant replied "Sleeping". By this stage the applicant had moved off the top of the complainant and was next to her on the bed. The complainant was still lying on her back. 5. After her brother knocked on the door, the complainant got off the bed and put her underwear back on. She did not recall what clothes she was wearing at the time, but she dressed, went to the door, unlocked it, and then walked out of the room and into her own bedroom. She cried and was feeling really sad and confused. She was very angry with the applicant. 6. She did not see her mother after she had left the applicant's bedroom. The next time she saw her mother was when she returned home from work at around 5.30pm but she did not tell her what had happened. The complainant was concerned about the consequences and was afraid of what her mother might think. 7. Later in the evening she went to the video shop and hired a movie called "St Trinian's". The applicant came into her bedroom to put the DVD on for her to watch. At the time she was feeling very emotional, upset and had been crying. She said to him "I need to talk to you" and "This can't happen anymore because you're cheating on Mum." He replied "Okay" (T.94.46 and T.94.50). The complainant was concerned about the applicant getting angry because he often became quite angry about a lot of small things and she was a little afraid of him. She was also mindful that he had said to her on the occasion of the first incident that she was not to tell her mother. He had said that a few times over the years and "He had a conversation with me about not telling mum and about the consequences that would come along with that if I came and told mum" (T.95.38). Count 13 – Aggravated sexual intercourse 1. The complainant provided details about the allegations in Counts 1 to 12 in her statement to police which she made on 28 July 2014. In relation to Counts 13 and 14, she made a further statement dated 15 July 2015. In July 2015 her aunt from Brisbane was visiting and was staying at the Ramada Hotel in Ballina. While she was talking to her aunt about the upcoming court proceedings and the process generally, she remembered a separate incident she had not included in her statement. She had a memory of an incident that happened on Shelly Beach in Ballina. 2. The complainant could not remember how old she was but thought that she was about 11 years old. The incident took place during summer. Her mother was not there that day. She had no idea what day of the week it was. The incident occurred between 10.30 in the morning and lunchtime. The applicant had taken her and her brother to the beach. She was wearing her red bikini and the applicant had on a pair of board shorts. Her brother was playing in the sand on the beach. There were no people in the water close to her and the applicant, but there were people walking along the beach. She and the applicant were in shallow water. He was facing towards the beach and she was facing away from the beach. 3. At the time the applicant was cradling the complainant on his lap with one arm around her neck and one arm around her front. While he was doing so, he put his hand down the front of her bikini bottoms and was using his finger in a circular motion inside her vagina lips and on her vagina. He was rubbing her clitoris with his finger, and she felt a very intense feeling and got off his lap and waded away in the water. She did not say anything to him and moved away (Count 13). 4. The complainant did not say anything to any of the people on the beach. She thought it must be okay because the incident or activity was happening in a public place, there were other people in the vicinity and because the applicant was doing it she thought that it must have been all right. 5. Following this incident, and the other instances of this conduct, the complainant did not like wearing bikinis around him and would always try to cover up. 6. Her relationship with the applicant was not "fabulous" and "she did not get along with him very well". He was hard on her about her school work, and about keeping her bedroom, the kitchen dishes, the kitchen and the other rooms in the house clean and tidy. He was strict with how she used her mobile phone and she was only allowed to use it for half an hour per night and at no other time during the day. She did not get along with him very well and they would fight a lot. 7. Her relationship with her mother was good until the abuse started. After that it went "completely downhill and I felt like I could not look her in the eyes anymore … I felt like if I talked to her, then what had happened with [the applicant] might have slipped out". 8. The complainant said that the applicant's behaviour was quite unusual at times. When she was taking a shower or having a bath he would just walk in without knocking and say "Oh, I need to have a shave or I need to get something". This made her feel uncomfortable and she would "turn my body away. I would try to cover myself up and try as best as possible, try to not let him see me" (T.109.19). The applicant would also ask her to come into the bathroom while he was showering or having a bath and ask her to wash his back for him. The complainant said that this behaviour started from when she was young and continued until she was 17, when he and her mother separated. The applicant would only behave in this way on those occasions when her mother was not present. The applicant told her "Don't say anything to your mother because you know how she gets about this stuff". The complainant never mentioned these matters to her mother because she thought her mother would be angry and also that her mother would think that it was weird that she had agreed to do these things for him. Count 14 – Indecent assault 1. The complainant obtained employment at a jewellery store in Ballina. She worked there between January and March 2014. She was on her feet all day and her back often became sore while she was working. The applicant would offer to massage her back. The applicant had previously massaged her back a few times before she started work at the jewellers. 2. On one occasion between about 5.30 and 6.30pm, the complainant had a sore back and the applicant offered to massage it. The complainant's mother was not at home as she also was working that day. The complainant agreed to the offer and went into her mother's bedroom. The applicant closed the door and said to her "Take off your dress and lie down." The complainant did so but left her bra and underpants on. The applicant said "You can take your bra off". She declined and unclipped it instead. The applicant was wearing an old indoor blue soccer shirt and a pair of silk boxer shorts. The complainant lay on the bed with her face down. The applicant sat on her legs and used Sorbolene cream to massage her back and shoulders down to her tailbone for several minutes. The applicant then moved his hands further down and started to massage the back of the complainant's legs and thighs. 3. As the applicant continued the massage, his hands moved closer to the complainant's backside and vagina until his thumbs touched her vagina on the outside of her underpants. When that occurred, the complainant quickly turned her head and told him to watch where he was putting his hands. The complainant thought that it was just an accidental touch and let it go. The applicant continued to rub the inside of the complainant's legs and his thumbs touched her vagina on top of her underpants on two more occasions. This caused the complainant to tell him that her back felt better. She reached behind her and clipped her bra together. When the complainant sat up to dress, she noticed that the applicant had an erection. 4. When she was aged about 15, the complainant had a conversation with the applicant. At the time she was very emotional and wanted to speak to her mother or somebody about what the applicant had done to her. The applicant had previously told her that if she told her mother he would kill himself. He also said that her mother would not believe her and that it was just as much her fault as it was his. When she confronted him, he said to her "Please don't tell because if you do, I might as well just go and kill myself right now" (T.116.5). 5. The complainant self-harmed with a razor blade. She started doing this after the incidents which took place when she was 11. She said that this was the only way she could express her feelings about what had occurred because she could not talk to anyone and because she felt extremely betrayed by what the applicant had done to her. When she was aged 17, and before her mother and the applicant separated, she spoke to the applicant about the self-harm. They were out on a drive in Ballina, picking up her brother from karate. She told the applicant that she had commenced self-harming because of him and she was angry with him for what he had done. The applicant responded "We need to take this to the grave with us" (T.117.18). The applicant also told her that her mother would never believe her and that she would kick her out. Complaint evidence 1. When the complainant was aged 15, she started dating Jake. They first went out in March 2012. She spoke to him about the self-harm. Jake asked her what was wrong and why she was doing this. She ended up telling him that the applicant had abused her when she was a little girl. At the time that she spoke with Jake about it, she "was not very good emotionally. I was pretty messed up, I was very emotional". She briefly explained the first incident to him. She said that the applicant had done something very bad to her when she was younger. This conversation took place in the last term of school in 2013 and before the back massaging episode. At this point, she had still not said anything to her mother. 2. At the beginning of 2014, she also spoke to her two best friends, SM and SK, and told them that the applicant had abused her when she was younger. She spoke to them together. 3. In February 2014 the complainant's mother and the applicant separated. In July 2014 she had a conversation with her mother. They were sitting out the back of the house in Ballina discussing selling the house. The complainant said that "I wanted to move out of that house. … because the house was very triggering for me. Every time I walked into the bedrooms it would remind me of what DV had done to me and I didn't want to have any more memories of that, I wanted to be out of there … Yes I did express to her that DV had abused me but I didn't go into any details with her. … that he sexually abused me and it had happened on multiple occasions" (T.120.45 – T.121.13). 4. On 12 July 2014 the complainant attended an appointment with a sexual assault counsellor at Indigo House where she spoke about her self-harming and about the applicant sexually assaulting her. Afterwards she spoke to police. On 28 July 2014 she made a statement to police and prepared some diagrams showing the layout of various rooms in the house in Ballina. In the ensuing months, she also made further statements to the police. Conversations with the applicant 1. In October 2014 a telephone conversation between the complainant and the applicant was recorded by the police using a surveillance device. The applicant was unwilling to talk to her about the assaults over the phone. On at least eight occasions during the conversation, the applicant told the complainant that he would not talk to her about it but that he was prepared to go and talk about it somewhere face to face. Following this conversation, police arranged to have the complainant fitted with a listening device and for her to meet the applicant in person in Ballina. 2. On 22 October 2014 the complainant drove to a park in Ballina where she met the applicant at about 4.50pm. At the time she was sitting on a park bench. He turned up and joined her. After he arrived and they had exchanged some short greetings, the applicant asked "Are you recording me?". The complainant replied "Oh yeah". A recording of the subsequent conversation became Exhibit 2 in the trial. The transcript of the conversation amounted to 26 pages. Although the conversation was in general terms, it contained a number of statements by the applicant which could be interpreted as admissions of sexual misconduct against the complainant. 3. Some parts of that transcript provide an indication of the overall content: "Complainant: And like, it not like it was just, oh, the touch on the bum here and there, its like sexual abuse. Like, do you know that? Applicant: Yeah. I know I did the wrong thing, darlin'. Of course I did. I feel sick. Complainant: How did you know that, how did you think that was appropriate at the time though? Applicant: It wasn't" (Exhibit 2, p 4). "Complainant: And you think about it, you think about the time in mum's bed and you think about the time in my room, and you think about the time in the lounge-room. Do you think about the time in your room, like … Applicant: I told you, I think about hurting you … I love you more than anything in the world. Please, I, I know that's hard to understand but, you know like … I do, I love you and, and I can't believe that I would do something like that. And you know, I don't know, I don't know what to say to you." (Exhibit 2, page 5) "Complainant: How does that, like, how that does even happen? Applicant: I don't know, I don't know. I cannot explain that. I cannot explain that. Complainant: Like I, like after the first time, after the first night … Applicant: Yeah. Complainant: I think I, like, I asked you and you said it was an accident. And then I, you forgot about it. But then it happened again in my room when you asked like when you said "Oh kiss me" and stuff. And like it's like that. Those are the things I, you know, when I see you and I go to hug you and stuff like it just replays over in my head. Applicant: I'm sorry. Complainant: And like, and like the third time mum was in bed, she was in the house and it's the last time so you knocked on the door, like I'm just sad that it just like really fucks with me. Like you say that you knew before that it was the wrong thing to do. Applicant: Oh. Complainant: Yet … Applicant: Yeah of course I did. …" (Exhibit 2, pp 11-12) Cross-examination of complainant 1. The complainant was cross-examined to the effect that she was making up the allegations and that they did not happen. It was put to her that it was implausible that she could have forgotten about the incidents, the subject of Counts 13 and 14, when they only occurred less than six months before the first statement was taken by police. The complainant responded that she did not forget it but it was not at the forefront of her mind because it was not one of the more serious incidents. 2. The applicant was cross-examined about her delay in complaint and about the fact that there was no disclosure of the sexual abuse by her during her counselling, which took place between 2011 and 2013. At that time the complainant was receiving counselling because of her self-harm. The complainant was cross-examined about her continuing contact with the applicant even after he and her mother had separated. The complainant responded that she felt obligated to stay in contact with the applicant, even after the separation, because he was her stepfather and that this was so notwithstanding the abuse she had suffered. 3. The complainant agreed that she did enjoy herself at times when she was at the applicant's home and in his company. She agreed that she had posted a photograph of the applicant, herself and her brother on Facebook and that it depicted an occasion when they were at Shelly Beach. She agreed that the caption underneath the photograph was "Fab" meaning fabulous. There were other photographs placed before the complainant which showed her to be apparently happy in the presence of the applicant. 4. The complainant agreed that she was involved in an accident on 9 November 2008, as a result of which the applicant took her to hospital because of the cut she had received when hitting a chest of drawers which was in the bedroom used by her mother and the applicant. She denied going into the applicant's bedroom when he was asleep and lying on the bed with him. She denied placing her hand on his penis while he was asleep. She denied that the injury was caused because the applicant pushed her off him and she fell off the bed. The complainant denied agreeing with the applicant to tell hospital staff that she was trying to fix something and hit a chest of drawers and that this caused the injury. 5. The complainant's version of this incident was that she and her brother, S, were both in the bedroom shared by her mother and the applicant and "They were all wrestling on the bed and mucking around on the side of the bed. She looked over and there was a block of chocolate in the bottom of a drawer. She leant down to get it, and slipped off the side of the bed and smacked her eye on the corner of the drawer and lacerated the eye" (T.154.10). 6. The complainant denied that there had only been one sexual incident between her and the applicant, being the occasion when he pushed her off, as a result of which she hurt her eye. She denied that this was the incident which she had talked about with the applicant on a number of occasions and in particular, in the conversation which had been recorded by the listening device and which became Exhibit 2. The complainant denied that she was talking about this incident with her eye when she complained to Jake about the sexual abuse. 7. The complainant maintained that when she spoke with the applicant in the recorded conversation, it was not about one incident but the many incidents of sexual abuse which had occurred when she was aged 11. 8. The complainant agreed that she still continued to talk to the applicant fairly regularly, even after she made the complaint to her mother. She denied that she spoke about the sexual abuse with the applicant on those occasions. 9. The complainant was recalled and cross-examined about the evidence she had given about watching the movie "St Trinian's". It was put to the complainant that she could not have watched that movie in 2007 because the movie was not released until 2008. The complainant denied making up her evidence and was now not able to say exactly what movie she was watching at the time. 10. In re-examination the complainant denied that she had ever touched the applicant's penis while he was sleeping and denied that any such incident had ever happened. She reiterated her earlier evidence that the applicant said that if she were to tell anyone about the sexual abuse he would kill himself and that this would ruin the family and rip the family apart. The complainant said that this was not the first time that the applicant had said something like that. On an earlier occasion when she confronted him about the abuse, he had said that he might as well just jump off Lennox Point if she was going to tell anyone about it and that he might just as well as kill himself. The complainant said that she was crying at the time and said to him that she would not say anything. She said this because at the time the applicant was quite distressed and she did not wish to make him more upset than he already was. 11. The complainant said that she did not get on very well with the psychologist she was seeing when she was being counselled for self-harm. She agreed she had not mentioned the sexual abuse to her. This was because she did not feel that she could be honest with the psychologist. The complainant said: "She told me that if I disclosed anything to her that she was a mandatory reporter and so she would have to tell my mum or tell the police if there was any harm that was going to be done, or had been done to me. So I didn't feel comfortable disclosing the matter – the matters with her." (T.203.10) 1. The complainant was afraid that the family unit was going to be completely destroyed and that her mother would not love her anymore and that she would not believe her, that the applicant would be in a lot of trouble and that her brother, S, would then grow up without a father and she did not want that. Complaint evidence 1. Jake became the complainant's boyfriend in about March 2012. He remembered an occasion in the last term of 2013 when the complainant was particularly upset. He could not remember the exact words which were used but thought that he had asked her what was the matter and that she was upset. At first the complainant would not say anything but eventually she told him "that she woke up with her stepdad's hand down her pants" (T.214.38). When she told him that, she started to cry. He never spoke to her again about the subject, nor did she raise it with him again. His relationship with the complainant continued after this and ended in the last term of 2013 in about November or December. 2. SK was a close friend of the complainant from 2011. SK remembered an occasion around the time that the complainant had broken up with Jake. The complainant was upset and crying. She told SK that she felt that she had no-one to talk to now that she was no longer with her boyfriend. SK told the complainant that she could tell her anything and she would try to be as supportive as her boyfriend had been. The complainant told her "That she didn't want to go to her father's house anymore and she told me that when she was younger he used to come into her room and do things to her … She said that he touched her inappropriately … Yes, she said that he told her never to tell her mother because she [KD] would never believe her. And that even if she did, no-one would believe her" (T.290.44 – T.291.3). The complainant told SK that she did not want to tell her mother because she did not want her asking why she did not want to go. She did not want to go because she did not feel safe. 3. SK said that she hugged the complainant for a long time. When the complainant was telling her these things, she was emotionally distraught. It took a long time to tell her anything because she was crying and had to stop in between sentences and catch her breath. The complainant said that she wanted to go to the police but she did not want to do it until she was 18 so she could keep her mother out of it because she said she believed what the applicant had told her, that it would break her mother's heart and that she would not want to believe it. 4. KD, the mother of the complainant, gave evidence. She gave birth to the complainant in 1996. The complainant's father was JA. KD's relationship with JA broke up when the complainant was aged three. In September 2000 KD began a relationship with the applicant. They were married in October 2001. The applicant's son, S, was born in 2002. At that time the complainant was aged five and had started primary school in Ballina. The family moved into the house where the offending occurred in 2006. 5. At the time when the offences occurred, S occupied the back room of the house and the complainant occupied the front room. When the family first moved into that house, the relationship between the applicant and the complainant was "pretty good most of the time". At that time, the complainant was aged about ten. KD commenced working with the NSW Business Chamber in about June or July 2005. She worked there until 2009. When the applicant was home and she was at work, he cared for both S and the complainant. KD was there in the mornings to care for them while the applicant left to go to work early. He would return home at around 3pm. 6. On weekends KD would have a sleep in the afternoons after lunch and S would sometimes lie down with her. When she was having a sleep the applicant used to watch sport and lie on the lounge in the lounge room which was the room as one first walked into the house. The complainant would either be playing in a room or having a rest. There were times when the applicant would ask her to go out to the lounge room to tickle and rub his back. 7. During the time that she was working, KD's relationship with the applicant was deteriorating and there were a lot of arguments concerning the complainant. They argued over parenting styles. KD observed that the complainant was withdrawing from her and that their relationship was not as tight as it used to be. The complainant also started to withdraw a lot at school and was not the happy kind of child that she used to be. She appeared to be sad for a lot of the time. KD observed this change when the complainant was aged about 11 through to high school. KD said: "So between 11 and 12. She finished year 5 and then when she was going into year 6, during that year she was a different kid as well … So she did start to withdraw from that but the difference between the way in which she used to enjoy life stopped quite suddenly." (T.234.9) 1. KD said that apart from the applicant watching sport, he would also watch pornographic movies which were kept in the drawer in a tallboy in their bedroom. KD observed that when she attended high school the complainant found it difficult to maintain friendships. She started to become quite smothering towards her friends and she took rejection fairly hard. This was when she was about 11 to 12. KD observed that the complainant was quite emotional and was starting to experience real lows, became quite depressed and started to self-harm with scissors and razor blades. 2. During 2009 and 2010 KD and the applicant were fighting regularly. They were having arguments and their relationship was disintegrating. This culminated in KD leaving the Ballina family home with the complainant and S. She moved into another house in Ballina. On one occasion, while the applicant was visiting the family, he asked the complainant, who was seated on the lounge, to give him a hug. She got up and they embraced and afterwards the complainant had a seizure and started to shake and wet herself during the seizure. She was disoriented. She was taken to Ballina Hospital and then to Lismore Base Hospital where tests were carried out. As a result, the complainant was referred to a psychologist and commenced seeing her under a mental health plan. There were six attendances. 3. In February 2011 KD reconciled with the applicant and moved back to the family home in Ballina. The relationship between the complainant and the applicant was not good. They would fight and argue a lot about the complainant using her mobile phone. The applicant was also strict about her going to parties, where she could go and what she could do. 4. On 21 February 2014 the applicant moved out of the family home in Ballina for good. This was done by agreement between KD and him. Their relationship was not working and they both agreed that it could not continue. 5. At around the beginning of May 2014, S was hospitalised for about one week and was in the Mater Children's Hospital in Brisbane. The complainant and the applicant travelled to visit him in the complainant's car which she drove. 6. In July 2014 KD had a conversation with the complainant. They were sitting on the back patio of the Ballina family home. KD and the applicant had agreed that the house had to be sold but they had yet to agree as to how this would happen. The complainant said "I didn't have one happy year in this house." KD said "Oh god, it wasn't that bad was it?" and the complainant replied "It was for me". She started to cry and she was shaking (T.252.29). 7. KD's evidence on this issue was: "A. I said to her, "Something has happened and you need to tell me." … Q. What did she say? A. She just kept saying, "I can't. I can't." She was sobbing. Q. How many times did she say that to you? A. At least three times. … Q. Take this slowly. Can you tell us, please, using the words she used, what she said? A. She said, "DV touched me." … Q. What did you say? A. I said, "Right. Recently", and then she said, "No, when I was little." … Q. How did that affect you? A. I went into shock. I started to cry. Q. At about that point when you went into shock and started to cry did she say something else to you? A. She said, "I wanted to tell you, mum. I wanted to tell you for ages but he told me that you wouldn't believe me, and it happened while you were here in the house and it happened on the lounge." Q. What did you say? A. And I said, "How did it stop?" Q. What did she say? A. She said, "I told him to stop." Q. You said that she had been crying and shaking. Was she still doing that? A. Yes. Q. She was still upset? A. Extremely. Q. Yourself? How were you? A. I was in a lot of shock. I'd just watched my daughter shatter into a million pieces in front of me. … Q. … Did you ask her how long a duration this had happened over? A. Yes, I did. Q. What words did you use to her? A. I said, "How long? How long did it go on for? Years or months," and she said, "Months." Q. There was some further conversation that took place between you and her at that stage, wasn't there? A. Yes. Q. Can you remember what the conversation was about? A. I don't remember the exact detail but it was about pornographic movies and oral sex. Q. Can you do your best to tell us what was said and what words were used? A. About the oral sex and the movies? Q. Yes. We don't expect you to do it word perfect but do your best if you could. A. She'd said that DV had put pornographic movies on and that – she said, "Then we had oral sex," and I said, "From him to you or you to him," and she said, "Both." … Q. Did she tell you at that stage something further about what happened? A. The only thing that I remember was about the oral sex and the pornography, the lounge, no, I don't remember. Sorry." (T.253.1 – T.254.43) 1. KD was cross-examined to the effect that there was no sudden change in the complainant when she was in year 5. KD disagreed. She did agree that the complainant developed depression when she was in high school. KD disagreed that the complainant's self-harming had also started when she was in high school and said that it had started before then. When KD was taken to her police statements, where she had said nothing about self-harming occurring before high school, KD responded that the self-harming was getting worse when the complainant was in high school. She agreed that she had not told the police that the self-harm had occurred when the complainant was in primary school. KD said that when she made her statement to the police it was stressful for her and that may have caused her to miss telling the police about that fact. 2. KD agreed that she had spoken to the applicant in December 2014 about the allegations. She had gone to his father's place and saw him there. She agreed that when she confronted the applicant he said "You've known me for 35 years. How can you think I could do anything like this?" KD then told the applicant "A hundred per cent, unequivocally I believe her and nothing you say is going to change my mind about that". KD agreed that during this conversation the applicant had commented about how ridiculous it was that somebody could remain in a house and that the sexual abuse would only go on for a set time. The applicant's case 1. The applicant denied completely all of the alleged offences. He maintained that they did not occur. He was a person of good character, never having been convicted of a criminal offence, except for some minor traffic offences. As a person of good character, it was submitted that it was highly unlikely he would have committed the offences he was charged with. 2. The applicant's case was that there was only one single incident that ever took place and that was when he awoke in his bed to find the complainant holding his erect penis, and he reacted by pushing her out of the bed and she hurt her eye. He was shocked by her inappropriate sexual conduct towards him. The applicant agreed that he had made a mistake in not dealing with it and not telling his wife, or anyone else, about what had happened. He felt guilty about that and he was prepared to accept that he had done the wrong thing in relation to it. In regard to the police recorded conversations, it was this incident to which he was referring and not to any other alleged sexual assaults. 3. It was submitted on behalf of the applicant that the complainant was not credible in her account of events and in particular the events giving rise to Count 14. Photographs taken from Facebook showing the complainant and him happily posing were taken at a period of time when the complainant claimed that she had been sexually assaulted. 4. It was part of the applicant's case that the complainant's evidence that he had inappropriately touched her during the massage when she was 17 was inconsistent with the fact that she was happy to go with him on a trip to Brisbane to attend a music festival "Soundwave". This was only a few weeks within the time that he was supposed to have allegedly assaulted her. Similarly, the photograph posted on Facebook of her with him at Shelly beach contradicted her claim that he forced her to go there. 5. It was also part of the applicant's case that the other reason to reject the complainant's account was that when she first spoke to the police about the alleged sexual assaults, she never mentioned the most recent assaults being that in Counts 13 and 14, and only referred to the assaults when she was aged 11. The applicant's evidence 1. The applicant said that he and KD starting seeing each other in 2000 when the Olympics were on which led to the commencement of a relationship. His relationship with the complainant was "a bit scratchy at first". She did not want to sleep in her own bed and wanted to sleep with her mother. The relationship improved over time and it was good after a while. "They had no problems". 2. In cross-examination he agreed that he exercised authority over the complainant and that he disciplined her. He denied that there were occasions when the complainant was 11 that she slept in their bed, on her mother's side, while her mother was away. 3. He agreed that he had bronchial asthma when he was young and sport-induced asthma as an adult but denied that it made him sniff differently to anyone else. He agreed that sniffing was a distinctive sound. 4. The family moved to Ballina when KD was pregnant with S. They moved into the family home in Ballina in September 2005. At that time his relationship with both KD and the complainant was good. His relationship with the complainant felt like a normal father-daughter relationship. The complainant always had difficulties with friends at school. She often came home crying because someone teased her or she had a fight with someone. In 2007 both KD and he were working. He worked from 5.30 – 6am until 3 – 4.30pm in the afternoons. He picked up S on the way home and they met the complainant there. He denied seeing a dramatic change in the complainant's personality after December 2007. 5. In cross-examination he denied that the complainant was mentally damaged before the eye incident and denied noticing that anything was wrong with her during her school years. He considered her to be fine, but to have had fights with her friends. 6. He denied knowing that the complainant was self-harming before she was 16. He denied knowing that she was self-harming at around 11 years of age. He accepted that he spoke with KD about the complainant and the trouble she was having with friends, but denied being told she was self-harming. He denied ever being told by the complainant that he was the reason she was self-harming. The complainant said "just friends at school, just life" when he asked why she was self-harming. He denied seeing the relationship between the complainant and her mother go downhill when the complainant was aged 11. The injured eye incident 1. At the end of 2008 the complainant was injured in the left eye. He had played soccer the night before and had a few beers with the boys after the game. He woke up at 6am that morning, made S some toast, and went back to bed because he was tired. KD was at work. The complainant was at home, as was his father. S had breakfast with his grandfather in the back dining room. The complainant was in her bedroom. He went to sleep sometime between 7 and 7.30am. Sometime later, he woke up aroused with an erection. Someone was touching his erection. He was in a daze. He had his hand on someone's thigh. When he opened his eyes he saw it was the complainant in his bed. He instantly reacted by pushing her out of the bed, hard. He was "freaked out". The complainant fell off the bed and hit the tallboy. One of the drawers was open and she split her eye open. 2. The complainant screamed. Blood was dripping out. He grabbed a towel and ran her out to his father to confirm that she needed stitches. He took her to the hospital. He was "freaked out and was panicking". He did not know what to do. The complainant said that she would say she was reaching out for the chocolate. He agreed. The complainant's eye was "glued back together" and they returned home after about 45 minutes. 3. When they returned home he rang KD. He did not tell her what actually happened as he was embarrassed. He and the complainant spoke to each other about what happened on many occasions. 4. In cross-examination the applicant maintained that his version of events was true and denied that the complainant was in fact leaning down to get a bar of chocolate when she fell off the bed. He maintained that the chocolate version was the made-up version. 5. He did not say anything to the complainant when he opened his eyes and saw her in the bed, he just pushed her. He did not ask the complainant at the time, or on the way to hospital, what she was doing, what made her do it or why she had done it. All he said was "what happened" and "you had your hand on my penis". He thought his reaction to the incident said enough. It all happened "so quick" and he was in shock. He was embarrassed that a 12 year old girl had her hand around his penis and that he was aroused. 6. The applicant was so embarrassed that he could not tell his wife. He was worried about the complainant's behaviour at the time. He was watching all the time to see what she was up to. He tried not to be in that situation with the complainant again. He did not let her in the bed with just him. She was only in the bed when KD or S were there. He thought there might have been times when the complainant hopped into the bed with him alone but that he would get out of bed unless KD or S were there. He assumed that the complainant would have been embarrassed about the incident. He was in a panic when the complainant suggested that they make up the story about the chocolate. He just agreed with her. He believed the complainant would have been embarrassed about having her hand on his penis. He believed that she was conscious of having done so. That did not initially concern him. He admitted being very selfish at first. He agreed that it might indicate some serious problem in relation to her knowledge of sex and that he had made the wrong decision. He did not know how to tell her mother. 7. Before this incident, there was no other suggestion that the complainant was sexually interested in him. This came "totally out of the blue". He denied calling KD from the bedroom before they went to the hospital. He drank heavily on the weekends at that time and considered himself a binge drinker. He denied that his binge drinking might have affected his memory of the incident. Television and DVDs 1. In 2007 he and KD did not have a television in their bedroom. KD was against it as it would wreck the Feng Shui. There was a television in the lounge room but it was not a flat screen. They first had a flat screen television in 2008. That television was purchased from Harvey Norman in Lismore. When the flat screen television was purchased, the old television was moved into the bedroom. That was the first time there was a television in the bedroom since 2005. 2. In cross-examination he agreed that he spent a lot of time trying to track down the receipts for the television. He denied that there were a number of different televisions in the house around that period and that there was a television that came from KD. He denied that there was a flat screen television in the bedroom before 2008. He attached a lot of significance to the television because it showed that what the complainant alleged did not happen. 3. He denied having hired the DVD "St Trinian's". He could not remember the complainant watching that movie. He agreed that he was unaware that there was a whole series of movies about St. Trinian's schoolgirls. He had never heard about the movie until he saw it referred to by the complainant in the brief. He denied ever talking with KD about the complainant watching the movie. 4. He had one pornographic DVD which he got after he was kicked badly in the testicles while playing soccer for Ballina. One of his mates brought him a bottle of champagne, a six pack, a pornographic DVD and a couple of magazines. He watched the DVD on occasions with KD. Initially the DVD was in the sliding door cupboard on the right hand side. When his dad moved out, they had a second lounge room in the back and the DVD went to the back and bottom of the TV cabinet. He noticed at times the location of the DVD would change. He did not move it. 5. In cross-examination he agreed that the DVD featured a muscly guy and a blonde lady. He did not know who moved the DVD. He agreed that sometimes it would be moved by him, but that he would put it back. He was suggesting that someone else in the house, namely the complainant, KD or S was using the DVD. He never saw anyone do so. He agreed that he should have locked the DVD up. 6. He denied ever calling the complainant into the bathroom to wash his back. He denied going into the bathroom when she was in there. He did go into the bathroom when she was a child, but he would not do so after she turned six. He would open the door to give her a towel regularly as she was always forgetting one. 7. Between 2008 and the separation, he and the complainant discussed the "eye" incident between them. They did so on a few occasions. His general reaction was that he was sorry and that he loved her. He did not really want to talk about it as it embarrassed him but he thought that it was affecting her. He did not do anything about it as he was scared that he was going to get into trouble. 8. On an occasion after the separation with KD, he went to the house and the complainant fainted. The complainant greeted him with a kiss and said hello. After being there for some time, he decided he had to go. He went to give the complainant a hug. He saw her eyes roll back in the back of her head. He caught her and called KD. KD took the complainant to the hospital. He was told that the reaction was because of stress. KD told him that she was going to take the complainant to see a psychiatrist. He had no problem with that. 9. He and KD had discussed the complainant attending counselling when she was in primary school. KD raised the subject. He did not believe in counselling at that time. He did not think it would help the complainant. He thought they could sort out the problem by talking. 10. In cross-examination, he agreed that when the complainant was young he thought her going to see psychologists and counsellors was a "crock" but that after she fainted, he did not feel that way. He denied being fearful that the complainant might say something when in treatment about what he had been doing to her. He denied being told that the complainant suffered from depression. 11. He and KD reconciled and moved back into the family home in Ballina. The relationship was excellent at first but declined after a year. They ultimately separated again for the last time. His relationship with the complainant was good during the reconciliation. They had arguments as he was a strict parent. They argued about her going to parties and the use of her mobile phone. He and KD decided to restrict her mobile phone use as she was always on her phone at the time. He moved out of the family home on 21 February 2014. He had been sleeping in the back room for at least a year before that. The complainant was in the matrimonial bed most of the time. He used to tell KD that the complainant was 17 and had her own bed. Massaging the complainant 1. The applicant agreed that he gave the complainant massages. The complainant asked him to do so and he obliged. He had done a lot of sport and had been massaged by physiotherapists who taught him how to relieve the pressure in the back. He would start the massage around the outside of the complainant's legs working on the pressure band, along the outside of the leg. He did not give the complainant massages often, only about three or four times a year. In cross-examination, he denied rubbing the inside of the complainant's thighs at any stage. At the end of the massage, the complainant would usually say "Dad that was awesome. Thanks for helping me out". He denied ever having an erection when he massaged the complainant. 2. He agreed that both KD and the complainant massaged him. On 22 February 2014, the day following his departure from the home, he took the complainant to "Soundwave" in Brisbane. He drove. They stayed the night at his sister's house. 3. In March 2014 he started seeing CH. At that time he saw S seven days on, seven days off, but the complainant was doing her HSC and so whenever she wanted to visit him, she did. Between March and April she visited two or three times. She did not stay over. The two got along well but she was not happy about the separation from her mother. 4. In early 2014 the complainant stayed overnight at his house. The complainant asked to stay over and requested he cook her pesto burgers. After dinner, CH texted him and invited him to her place. He asked the complainant if she minded if he went over. The complainant said that it was fine. The next day he tried to call the complainant but did not get an answer. He spoke to KD, who was not happy that he had left the complainant on her own. He spoke to the complainant that night and she said that he had chosen CH over her. The complainant was very distant after that. Conversations with the complainant 1. In 2014, shortly after that, he and the complainant were walking along Shelly Beach when she said that she started remembering what happened in the "eye" incident. He knew what she was talking about as it had been the only incident. She said that she remembered him touching her thigh and having a hand on the side of "her boob". He said that would have been a bit hard. She maintained that that was what she remembered. The conversation did not last for very long. In cross-examination he agreed that this was the first time that the complainant mentioned sexual assault to him. 2. There was an occasion when S was very sick. He went to Ballina Hospital, then to Lismore Base Hospital and finally to the Mater Hospital in Brisbane. S was at the Mater for about a week. The applicant and the complainant drove to Brisbane at the same time as S was being transferred to the Mater Hospital. During the car ride, the complainant asked whether they could talk. The applicant responded "Are you f---ing kidding me?" He made this response because that was the way she always brought up the incident and he felt the timing was inappropriate given that S was very will. The complainant said that she had been looking into it and what happened could have been sexual assault. The applicant lost his temper and screamed at her. He was very emotional about S who was very ill and had almost died. Both he and the complainant cried and did not talk much more about it. 3. After that conversation, the complainant brought up the incident once a week or once every two weeks. She began to talk about it as a sexual assault. The applicant told her that if she thought it was a sexual assault, they should go to the police. After a while he just agreed with her because it was not worth another drama for her. He felt guilty because of the way he had handled the incident and about lying to the doctor. 4. In cross-examination the applicant said that he was starting to get worried about the complainant and that her imagination was running wild. Things were starting to be created that did not happen. The applicant agreed that there was a lot more said between him and the complainant during these conversations, but could not remember what that was. Recorded conversations 1. The applicant said that his feelings of guilt about the incident were with him during the recorded telephone call and the meeting between him and the complainant which was recorded. He said that it was not unusual for him to say he was sorry or that he loved her. He was trying to make her feel comfortable. He felt as though he was a terrible person for not telling KD, the doctor and for not "getting it out". 2. The applicant was worried about the complainant because the conversation took place in the middle of her HSC exams. She was highly stressed about the exams and everything that happened that year. The applicant was just trying to get her through her exams and trying to make her happy. He was trying to make her feel that he was not as happy as he was with CH, but in fact he was very happy. He lied to her about being unhappy because she was not happy. He wanted her to know he was not forgetting her because he wanted her to be a part of his life. 3. In cross-examination, he agreed that he was trying to appease the complainant, to keep her happy and to quieten her down. He was over it. He did not want to talk about it anymore when she raised the incident during this conversation. The applicant agreed that what he did was inappropriate. He was aroused next to a 12 year old when he was asleep. He pushed the complainant off the bed and smashed her head into the cupboard. It was very inappropriate. 4. When he said "There would be f---ing ten lives that would be just f---ing uplifted and uproared", he was mainly talking about his son's life. S was 14 and had just been really sick. He was also talking about the other lives and was trying to make her aware that it would have an effect if he got into trouble for the assault. The applicant maintained that he was talking about the injured eye incident and nothing else. 5. In cross-examination he agreed that he made reference to the lives that would be ruined for his own self-preservation. He did not want the complainant going to the police with a crazy story like she was starting to tell. He agreed that he was putting obstacles in her way to stop her from disclosing what had happened when he made that comment. He agreed that he was trying to make her feel guilty. 6. He agreed that he was probably trying to make the complainant feel guilty again when he referred to hoping the ladder would give way when he was in the tree working. He was probably doing so because he did not want the incident to get out. He was hoping that she would feel some sympathy towards him, thinking that he was suffering. He was looking after himself at that point. The applicant agreed that he was trying to hose down the complainant's anger and get her back on side by telling her he would do anything for her. He was prepared to lie for that reason. 7. The applicant felt sick to the stomach thinking about how he dealt with the incident and its aftermath. Had he dealt with it earlier he would not have been in court. He agreed that the reason he made comments about dying was for self-preservation. He denied that he had been trying to preserve himself since the time the complainant was aged 11. The applicant said that the complainant had added to the incident such that after six years it had suddenly become a sexual assault. 8. He denied that he thought the injured eye incident was a sexual assault. He maintained that all his answers to the complainant during the meeting related to the injured eye incident. He denied his reference to "all" when he said "if it all comes out" was a reference to a whole series of episodes (T.469.9 – .21) 9. The applicant would not talk to the complainant over the phone as he was paranoid because her story had started to grow, and he thought she might have been recording the conversation. He agreed that he was concerned for his self-preservation. When the complainant said she did not know if they could talk face to face he thought she was carrying on because they had talked about it face to face in the past. He was scared about what the complainant would say. 10. The applicant maintained that he had done something wrong by pushing the complainant off the bed and not telling KD nor the doctors the truth. He believed that this had affected the complainant mentally. He observed that the complainant was very attention seeking and smothering of people. She always wanted people to like her and was very needy. These observations gave him the impression that she had been affected mentally. 11. The applicant said that the answers in the recorded conversation did not give an indication of what he was thinking. He had some concern for the complainant, as well as himself. He did not know why he did not set the complainant straight. 12. When the applicant was asked to explain the complainant's reference to events happening in various rooms, he said: "At that stage and like I said before I was just pacifying her. I was just telling her what she wanted to hear. She obviously had a script that she was going by and she was just throwing out enough. She never said to me once "You touched me on the vagina in a circular motion. You did that". If she had said that, that is when I would have said something. I was just trying to get her through her exams." (T.458.12) THE APPEAL Ground 1 – A miscarriage of justice was occasioned as a result of the trial judge's directions to the jury in relation to the use that they could make of the evidence of complaint. 1. His Honour's direction to the jury was as follows: "So ladies and gentlemen, that is what the complainant said to you about complaint and who she complained to. That is what she said to them and also what those persons said as to what they could recall of what she had said to them. So it is entirely a matter for you to decide what complaint was made and what its contents were. If you find that the complaint was made substantially to the effect that she was sexually assaulted and to what extent the sexual assaults were revealed by that complaint then you can use that evidence of what was said in the complaint as some evidence that such assaults did occur; that is, you can use it as some evidence independent of the evidence given to you of the incidents by [the complainant], in the witness box. The law says that because of the circumstances in which the complaint was made, a jury is entitled to use what was said in the complaint as evidence of the truth of what the complainant alleges against the person. The jury is entitled to find that the complaint was made at a time and in a manner that would indicate that the allegation was reliable; that is that the allegation is less likely to have been fabricated by [the complainant] and more likely to be accurate. There are of course other matters that can be taken into account, such as her distressed condition at the time of the complaint as disclosed in what was said by those she complained to. It is of course a matter for you whether you draw that conclusion in this particular case and so treat the complaints as evidence of the alleged assaults by [the applicant], in addition to the evidence that has been given about them in this courtroom. If you do use the complaints, there is some evidence of the assaults that are the subject of the charges, then what weight you give it is again a matter for you. Whether you do use the evidence of complaints in that way or not, the Crown asserts that it has another purpose. The Crown contends that the fact that [the complainant] raised the allegations against the accused, at the time and in the manner that she did would lead you to accept the evidence she gave in the witness box; in other words, it makes her evidence more believable than if she had not raised the allegation as she did. In that regard the Crown asks you to take into account that the initial incidents all occurred, according to the complainant's evidence, when she was about 11 years of age, and that you would understand that an 11 year old, having been sexually assaulted in that fashion may not complain until some years later, particularly in the circumstances of what she says was in effect a form of instruction, not to inform her mother, and also what you might refer to as perhaps some degree of emotional blackmail as to the result that might happen from any disclosure." (SU 15.7 – 17.2) 1. The applicant accepted that by operation of ss 66(1) and (2) of the Evidence Act 1995 (NSW) the hearsay rule did not apply and that the evidence of complaint was available for a hearsay purpose, i.e. as evidence of the truth of the fact asserted. The applicant also accepted that such evidence may also be admissible for another purpose (IMM v The Queen [2016] HCA 14; 257 CLR 300 at 318 – 320; [65] – [72]). 2. In analysing the effect of the direction, the applicant noted that the first paragraph made it clear that the jury could use the complaint evidence as evidence of the truth of the fact asserted. The applicant also noted that the effect of the second paragraph was that the jury could take into account the "time and … manner" of the complaint with respect to the reliability of the "allegation" but made it clear that this was to determine whether "the allegation is less likely to have been fabricated". In other words, this part of the direction explained that the evidence was available as evidence going to the consistency of the complainant's conduct or was corroborative of the complainant's credibility. What was challenged by the applicant as incorrect was the content of the last two paragraphs of the direction. The applicant submitted that this direction suggested that there was a credibility use for the evidence beyond what had already been put. The applicant identified the error as an overstatement of the use that could legitimately be made of the evidence of complaint. 3. The applicant submitted that while the time and the manner of the complaint being made, as referred to in the second paragraph of the direction, may have been relevant to admissibility under s 66(2) and the weight to be given to the evidence as evidence of the truth, the jury were unlikely from the directions given to have been able to differentiate the uses to which the evidence could be put. This was because the uses overlapped. 4. The applicant submitted that the need to give a direction that the evidence could be used to indicate consistency of conduct, stemmed from the time when that was the only use that could be made of the evidence, i.e. the need to give such a direction was to distinguish between such a use and other impermissible uses such as evidence of the truth of the facts asserted. Given the absence of any such restrictions, the applicant submitted that the utility of such a direction was now questionable. The applicant submitted that whatever the utility of directions separating the uses to be potentially made of complaint evidence in the present case the direction suggested two legitimate bases (albeit suggesting an independence between them) but went on to suggest that there was a further basis. This inevitably had the effect of suggesting to the jury that the evidence was capable of doing more than it rationally could. The directions created a risk that the jury would give too much weight to the complaint evidence. 5. The applicant accepted that there was no objection to the direction at trial and that leave was required under r 4 of the Criminal Appeal Rules (NSW) in order to allow the applicant to rely upon this ground of appeal. Consideration 1. It should be noted that the direction given by his Honour is consistent with the suggested direction in the NSW Judicial Bench Book. That does not mean that it is correct, nor does it give any special status (Hong v Regina [2009] NSWCCA 242; Ith v R [2012] NSWCCA 70 and AL v Regina [2017] NSWCCA 34). What it does indicate, however, is that this kind of direction has been given since the promulgation of the Evidence Act without challenge. 2. The complaint evidence was adduced during the complainant's evidence in chief and from each of the "complaint witnesses" without objection at trial from senior counsel for the applicant. The complainant was cross-examined about various aspects of the complaints, absence of complaint (e.g. to the counsellor she was seeing) and delay in complaint. The applicant does not contend that the complaint evidence was not admissible at trial pursuant to s 66 of the Evidence Act. 3. The applicant accepts the correctness of the direction, except for the last two paragraphs. The applicant accepts that the directions up to that point covered the use that could legitimately be made of the complaint evidence but contends that the impugned part of the direction went further and overstated the use that could be made of the evidence. 4. As is acknowledged by the applicant, complaint evidence may be used as evidence of the acts charged (Papakosmas v The Queen [1999] HCA 37; 196 CLR 297). At common law, matters such as the presentation and distress of the complainant were admissible as going to the truth of the complaint (evidence of the fact) whereas the content of the complaint was admissible only for the purpose of bearing upon the consistency of her behaviour and allegations (the credibility use): Papakosmas at 305 – 306; [20]. However, the operation of s 66 of the Evidence Act has the effect that the complaint itself may also be relied upon as evidence of the fact: Papakosmas at 309; [32] – [33]. 5. The content of the complaint, the distress of the complainant when making the complaint and the timing of the complaint are all matters which impact upon the probative value of the complaint evidence when being relied upon as evidence of the acts charged. The applicant accepts that these matters may have been relevant to the probative value of the evidence of the truth. 6. The impugned part of the direction directs the jury that there is another purpose for which the Crown relies upon the evidence, namely the credibility use, i.e. the only use to which evidence of the complaint could be put at common law. The fact that the second last paragraph of the direction introduces the conventional "consistency" direction is illustrated by what follows in the summing up, including references to the delay in complaint and potential explanations for that. 7. The evidence was admissible and received as both evidence of the facts in issue and as relevant to an assessment of the complainant's credibility and reliability (IMM v The Queen at 319; [71] – [72]). In those circumstances, there was no unfairness in the jury being directed that they may use the evidence for each of those purposes. The directions were in accordance with authority and did not create unfairness or a risk of unfairness in the circumstances of this case. The most that could be said against the impugned direction was that it was repetitive. 8. The applicant was represented at trial by experienced senior counsel. No objection was taken to the complaint evidence, nor was any application made to limit the use which could be made of that evidence, nor was any redirection sought with respect to the complaint direction. This is not surprising when the complaint evidence is considered in the context of the defence case at trial. The applicant ran a positive case at trial, which was that the "injured eye" incident had been misinterpreted by the complainant in her thinking over the years, and that this had led to her later exaggerating and/or fabricating the sexual abuse allegations when she became angry that the applicant had left the marriage and the family and formed a new relationship. 9. In Dent v R [2017] NSWCCA 166 at [109] – [113] this Court (Hoeben CJ at CL with whom Bellew and Fagan JJ agreed) quoted the following passage from R v Fuge (2001) 123 A Crim R 310 in which Wood CJ at CL (with whom Heydon JA and Sully J agreed) said at 319: "It is timely for this Court to repeat the observations of Hunt CJ at CL in R v Abusafiah (1991) 24 NSWLR 531 and of Gleeson CJ in Sanderson v R (unreported, Court of Criminal Appeal, NSW, 18 July 1994), in relation to the positive obligation which rests upon trial counsel to assist the court in the conduct of a trial, and in relation to the need to give meaning to r 4, whose validity was confirmed in R v Esposito (unreported, Court of Criminal Appeal, NSW, 23 July 1990). In Abusafiah, Hunt CJ at CL said (at 536; 429-430): 'The requirements of r 4 of the Criminal Appeal Rules do not constitute some mere technicality which may simply be brushed aside. One purpose of the requirement that no misdirection or non-direction may, without leave, be allowed as a ground of appeal unless objection was taken at the trial is to ensure that the trial judge receives the assistance from counsel to which he or she is entitled in the task of giving appropriate directions to the jury. If a summing-up contains some error which could easily have been cured once the judge's attention had been drawn it, and if counsel for the accused to whose detriment the error operates fails to comply with his or her duty to draw the judge's attention to that error … any suggestion that such detriment automatically entitles the accused to a new trial does not strike a sympathetic cord in the ears of those who see the right to a fair trial as operating in favour not only of the accused but also of the Crown, which prosecutes on behalf of the whole community. The Criminal Appeal Act 1912 (NSW) does not exist to enable an accused who has been convicted under one set of issues to have a new trial under a new set of issues which he could and should have raised at the first trial. There are, of course, cases in which the error made is of such a nature that, notwithstanding the failure of counsel for the accused to comply with a duty leave will be granted to avoid a miscarriage of justice.'" 1. In the present case there was no failure of trial counsel to raise an error in the summing up with the trial judge, in the sense spoken by Hunt CJ at CL in R v Abusafiah (1991) 24 NSWLR 531. This is because the direction given was not in error, nor misleading, nor did it cause unfairness in the conduct of the applicant's trial. I would refuse leave to the applicant to rely upon this ground of appeal. Ground 2 – A miscarriage of justice was occasioned due to the absence at trial of evidence which has since become available. 1. An extension of time was granted to the applicant to rely upon this additional ground of appeal which was first raised on 21 July 2017. 2. In support of this ground, the applicant relied upon two affidavits of S, sworn 18 and 27 July 2017; an affidavit of CH, sworn 20 July 2017; two affidavits of Mr Brady SC, affirmed 25 July and 21 September 2017 and an affidavit of Mr Spinks, affirmed 9 August 2017. Paragraph 6 and all except the first two sentences in par 7 of that affidavit were not read. Mr Spinks is the applicant's solicitor in the appeal and Mr Brady SC was counsel who appeared on behalf of the applicant at trial. 3. In response, the respondent relied upon an affidavit of the complainant, sworn 28 July 2017. The second half of par 7 of that affidavit commencing with the words "and it was very awkward" to the end of that paragraph was not read. The respondent also relied upon an affidavit of KD, sworn 26 July 2017 and of Tracey Randall, affirmed 13 September 2017. Ms Randall was the applicant's solicitor at trial. 4. The fresh evidence relied upon by the applicant concerned the content of a conversation between the complainant and KD, which S said that he overheard in October 2015 and a conversation which he had with KD on the following morning. The evidence, as set out in his first affidavit, was: "12 I remember my mother lit a cigarette and then she and [the complainant] started to talk about my dad. I heard [the complainant] say words to the effect of: "Why did we make up so many stories?" My mum said words to the effect of: "What do you mean?" [The complainant] replied: "What if I can't remember all of the stories?" My mum said: "It's okay we'll figure it out, just have to learn it, kind of like learning a script for drama." [The complainant] said: "I've always been good at drama so it should be easy."" 1. The following morning, S confronted his mother and said the following in his affidavit: "15 … "I heard what you and [the complainant] said last night. My mum said: "What are you talking about?" I said: "I know you are lying about dad." Mum said: "Well it's my word against yours."" 1. The affidavit of CH set out a conversation which she had with S on 15 July 2016 in which he told her about the conversation between the complainant and KD which he had overheard in October 2015. CH set out what she said S told her on that occasion. It was to similar effect to the evidence of S, although there were some minor differences. CH deposed that she was present when S told the applicant about the conversation between KD and the complainant in October 2015 which he had overheard. 2. The affidavit of S of 27 July 2017 deposed that CH was the first person that he had ever told about the conversation he had overheard between the complainant and KD in October 2015. It also deposed as follows: "3 We lived at the house at [xx] Street Ballina from the time I was approximately 3 or 4 years old until the time I was approximately 11 or 12. I remember an incident when my sister [the complainant] hit her head and had to go to hospital. I am not sure of the date when that happened or how old I was. I remember I was sitting on the couch watching television and I heard something happen in my dad's bedroom and I ran in there and saw she had hit her head. I was definitely not in the bedroom when it happened. 4 While we were at [xx] Street, I don't remember ever knocking on my dad's bedroom door and being locked out or asking to come in and being told that [the complainant] and my dad were sleeping." 1. The affidavits of Mr Brady SC set out his reasons for not speaking to, obtaining a statement from or calling S before and during the applicant's trial. The affidavit of Mr Spinks concerned the same subject matter and also set out that he and Senior Counsel appearing in the appeal were told for the first time on 17 July 2017 by the applicant about the conversation between KD and the complainant which S said that he had overheard in October 2015. 2. S and CH were cross-examined on the contents of their affidavits in the appeal, as were the complainant and KD. 3. In cross-examination S agreed that he had always believed that the applicant was innocent of the charges which had been brought against him and that the complainant was telling lies about those matters and that the conversation which he overheard in October 2015 confirmed that belief. In his affidavit and under cross-examination he said that he had not said anything about that conversation before or during the applicant's trial because at the time he was very close to his mother, was living with her fulltime and was afraid that he would get her into trouble. He did not want to get anyone else into trouble, including the complainant. Also the applicant had told him to stay out of it because he [the applicant] was dealing with it. S said that at that point in time he never thought that the applicant would be going to prison. He said in his affidavit: "17 I often thought after that happened that I should tell dad but I always thought he would tell me to stay out of it. I wish I had told him straight away." 1. Under cross-examination, the complainant and KD denied that any such conversation as deposed to by S took place in October 2015 and KD denied that she had had a conversation the following morning when she had said that it would be her word against that of S. They did say that the complainant was nervous and anxious about the trial and they spoke about that on occasions (but not on the occasion identified by S). On one occasion (but not on the occasion identified by S), KD did suggest to the complainant that she treat giving evidence in the trial as "a bit like drama class at school to place things in order". 2. The applicant submitted that the evidence in the affidavits of S, and the supporting evidence of CH, only came to light after his conviction. It was not available at trial and could not with due diligence have been obtained. He submitted that this evidence was therefore "fresh" rather than simply "new". He submitted that in the context of a case in which the credibility of the complainant was critical, that had the "fresh" evidence been available, there was "a reasonable possibility that the jury acting reasonably would have acquitted the accused" (R v Abou-Chabake [2004] NSWCCA 356, 149 A Crim R 417 per Kirby J at 427 – 8;[63]). 3. The applicant accepted that the affidavits of Mr Brady SC and Mr Spinks established that before the trial and at the beginning of it they were aware of the possibility that S might be able to give relevant evidence touching the following aspects of the trial: 1. The complainant's evidence that at the time of Counts 5 – 12, which were alleged to have taken place as part of a single episode in the applicant's bedroom, S knocked on the door and rattled the door handle and said "What are you guys doing?" to which the applicant is alleged to have responded that they were sleeping. 2. That the complainant was taken to hospital on 9 November 2008 as a result of a cut to her eye and that there was a dispute as to how this cut occurred. It was the applicant's case that it occurred when she and the applicant had fallen asleep in the applicant's bed and when he awoke, he found her hand on his penis and he pushed her off the bed causing her to hit her head on a chest of drawers cutting her eye. The complainant denied this and said that the injury occurred when she and S were playing on the bed. 1. As was set out in the affidavits of Mr Brady SC and Mr Spinks, at no time was there ever a conference with S. When Mr Brady SC raised the prospect of S giving evidence with the applicant, the applicant expressed concern at the prospect of his son being involved in the trial. There were also concerns with respect to S's wellbeing and an Aboriginal Field Officer had spoken to the Crown about "some concerns" that that person had about S giving evidence. Mr Brady SC also had concerns about the value of any evidence that S might give due to the fact that his age at the time of the offending in Counts 5 – 12 was five, and in November 2008 was six. Mr Brady SC was concerned that due to his age and the amount of time which had elapsed, he might not have been able to give any useful evidence. Mr Brady SC was also concerned that even if he could, evidence which might be seen as favourable to the applicant was likely to be undermined by cross-examination or even be potentially damaging to the applicant's case. Mr Brady's concern was that the jury might think it was inherently unlikely that S would be able to recall these events and that he had been persuaded to give evidence to that effect by the applicant. It also became apparent that he would probably have to call S without having had a conference with him. 2. The applicant submitted that these matters adequately explained the reasons why he chose not to call S and that it was simply speculation that if it had been necessary to contact S and ask whether there was anything else which he was able to say about the matter, S would have made reference to the conversation which he overheard. In those circumstances, the applicant submitted the evidence was certainly "fresh" and should be treated as such by this Court. 3. On the issue of whether the "fresh" evidence was capable of belief, the applicant submitted there was nothing inherently improbable in the evidence, even though it was directly contradicted by the complainant and KD. The applicant submitted that the evidence of S as to his recollection and surrounding circumstances was quite convincing. The applicant noted that when S was asked why he had a particular recollection of this conversation, his response was that he remembered it because at the time it made him very angry and it confirmed what he already believed. In relation to the failure by S to report this conversation to anyone, the applicant submitted that he was aged 14, had serious health problems and had been told by his father not to become involved. The applicant submitted that in the circumstances, the reaction of S was reasonable even though there were opportunities when he might have raised it. The applicant submitted that there was no inconsistency between the email of a diary note sent by Ms Randall and the evidence of S in that he had consistently said that he did not remember being in the room when the complainant hurt her eye. 4. The applicant submitted that it was for a jury to evaluate the "fresh" evidence of S and it was not appropriate for this Court to engage in that process unless there were some clear and obvious improbability in the evidence. 5. In relation to the third matter, i.e. whether the "fresh" evidence of S would have made a significant difference in the trial, the applicant submitted that there was a significant possibility that the jury acting reasonably might have acquitted him, particularly in a trial such as this where there were mixed verdicts. The applicant submitted that even if the jury did not fully accept the "fresh" evidence of S, the fact of that evidence might be sufficient to give rise to a reasonable doubt in the jury's mind so as to give rise to a significant possibility of a verdict of acquittal. 6. This was particularly so in a word on word case such as here. 7. When looking at the strength of the Crown case generally, the applicant accepted that the recorded conversation between him and the complainant could be regarded as containing admissions. The applicant noted, however, that the statements in that conversation were all of a general kind and that there were no specific instances or offences referred to. In those circumstances, the applicant submitted, such general statements would not assist a jury in deciding whether the elements of Count 1, Count 2 etc had been made out. In view of the "fresh" evidence of S, it would be difficult for the jury to actually go through each particular count and say that they were satisfied beyond reasonable doubt as to the occurrence of the events set out in that count. Consideration 1. The principles in relation to fresh evidence are reasonably clear. They were summarised by Kirby J in R v Abou-Chabake at 427 – 8; [63] as follows: "63 The authorities in respect of fresh evidence have recently been collected and analysed by Giles JA in R v Bikic [2002] NSWCCA 227, and Heydon JA in R v M [2002] NSWCCA 66 at paras 61-64; see also R v Sleiman [2003] NSWCCA 231 paras 101-105. The test was stated by Barwick CJ in Ratten v The Queen (1974) 131 CLR 510 at 518-520 (McTiernan, Stephen and Jacob JJ agreeing). It was reaffirmed in Lawless v The Queen (1979) 142 CLR 659 by Mason J at 674-5 (Barwick CJ and Aiken J agreeing). The principles may be summarised as follows: • First, a distinction is made between "new evidence" and "fresh evidence". Fresh evidence is evidence not available to the accused at the time of the trial, actually or constructively. Evidence is constructively available if it could have been discovered, or available at the trial by the exercise of due diligence. • Second, great latitude must be extended to an accused in determining what evidence, by reasonable diligence, could have been available at his trial (Ratten v The Queen (supra) per Barwick CJ at 512). • Third, the Court is ultimately concerned with whether there has been a miscarriage of justice. The rationale for setting aside a conviction on the basis of new evidence or fresh evidence is that the absence of that evidence from the trial was, in effect, a miscarriage of justice. That evidence must be examined in the context of the evidence given at the trial (Mickelberg v The Queen (1989) 167 CLR 259, per Toohey and Gaudron JJ at 301). • Fourth, the issue of whether there has been a miscarriage is to be approached on a number of levels, depending upon the order sought (whether a verdict of acquittal or a new trial), and the capacity of the new or fresh evidence to sustain the order sought. • Fifth, where a verdict of acquittal is sought and the new evidence is of such cogency that innocence is shown to the Court's satisfaction, or the Court entertains a reasonable doubt as to guilt, the guilty verdict will be quashed and the appellant discharged. In such circumstances, it does not matter whether the evidence is fresh or simply new (Ratten v The Queen (supra) Barwick CJ at 518/519; cf Gibbs CJ in Gallagher v The Queen (1986) 160 CLR 392 at 398/399). • Sixth, where the evidence does not have that quality, or where a new trial is sought, a number of issues arise. The verdict will be quashed and a new trial ordered only where the following questions are answered affirmatively: • Is the evidence fresh? • If it is, is it "credible" or at least capable of belief (Gallagher v The Queen (supra) per Gibbs CJ at 395), or "plausible" (Mickelberg v The Queen (supra) per Toohey and Gaudron JJ at 301)? • If it is, would that evidence, in the context of the evidence given at the trial, have been likely to have caused the jury to have entertained a reasonable doubt about the guilt of the accused (Gallagher v The Queen (supra) per Brennan J at 410) or, if there is a practical difference, is there a significant possibility that the jury, acting reasonably, would have acquitted the accused (Gallagher v The Queen (supra) per Mason and Deane JJ at 402)? See Mickelberg v The Queen (supra) per Toohey & Gaudron JJ at 301-302. • Seventh, the concept of a miscarriage of justice is not an abstract investigation of truth (cf an Inquiry under s474D Crimes Act 1900). It is an investigation in the context of the adversarial nature of a criminal trial. Where deliberate tactical decisions are made on the part of the accused as to the evidence that should or should not be called, and the issues that should or should not be pursued, there is nothing unfair, and there will be no miscarriage, in holding an accused to such decisions, even though it is conceivable that other decisions or something else may have worked rather better (Ratten v The Queen (supra) at 517)." 1. Those statements of principle have been affirmed in Khoury v R [2011] NSWCCA 118 at [104] – [110], Aouad and El-Zayat v R [2011] NSWCCA 61 at [303] and Tran v R [2014] NSWCCA 32 at [12]. In MRW v R [2011] NSWCCA 260 at [46] Bathurst CJ (with whom James J and Johnson J agreed) identified the three questions that need to be considered where a conviction is sought to be quashed and a new trial ordered on the basis of fresh evidence, namely: "46 First, is the evidence fresh evidence in the sense that it was not available to the appellant at the time of trial; see Ratten v R [1974] HCA 35; 131 CLR 510 at 512; Second, was it credible or capable of belief and third, was there a significant possibility that the jury acting reasonably would have acquitted the appellant." 1. In relation to the first question, the relevant issue is whether the evidence could not with reasonable care have been discovered previously or "could not then have been available to the appellant by the exercise on his part of reasonable diligence in the preparation of his case": ALS v R [2013] NSWCCA 63 at [68] (Beech-Jones J with whom Hoeben JA and Adams J agreed). 2. The conversation which S said that he overheard between the complainant and KD took place approximately six months before the applicant's trial. S said that he made a personal decision not to bring the conversation to the attention of the applicant or anyone else. He was never approached by the applicant's lawyers about any matter connected to the trial. 3. The applicant's legal advisors were clearly aware that potentially S might be able to give evidence which would assist the applicant in his trial. This is accepted by Mr Brady SC and Mr Spinks in their affidavits. It is also apparent from the trial transcript. On Tuesday, 3 May 2016 (T.220) the Crown said: "… the situation is that my friend has raised with me the issue of the brother S not being a witness in the case and has asked that at least a statement be taken from him. There are some difficulties with that in that he's in high school over at Ballina. HIS HONOUR: How old was he in … CROWN PROSECUTOR: He would have been I think five going on six, I don't know what is likely to come of him giving evidence. I know that he spent last weekend in the custody of the accused. There is an Aboriginal Field Officer who is coming in to speak with me this morning about the boy and he has some concerns that he wants to speak to me about …" 1. In subsequent discussions, the following was said (T.221.11): "BRADY: … Just for my two penny's worth, if your Honour pleases, that's the fundamental issue in this case, is whether that really occurred in the way that she described. We'll say it's a fundamental issue whether it occurred in the way she described or the way the accused described, obviously. The complainant has put S squarely present at that incident. HIS HONOUR: Whereas your client has no-one there but himself and her. BRADY: And her. The way she has described it and what occurred, S is there and obviously would have seen it if it occurred the way she said. I appreciate that five or six – it may be that he remembers nothing of it because he remembers nothing of it or it may be he remembers nothing of it because he wasn't there, but until we find out it's a glaring issue as far as the defence case goes." 1. On 4 May 2016 when the trial resumed, the Crown Prosecutor indicated to the court (T.299.10): "CROWN PROSECUTOR: Your Honour, the point that we've arrived at is we've come to some agreement. The defence is no longer asking that the young boy Sam be called as a witness and the Crown doesn't intend to call him as a witness. We've come to an agreement on that and we'll leave it at that. …" 1. It should also be noted that Annexure "D" to the affidavit of Ms Randall was an email, dated 30 April 2016, addressed to Mr Brady SC which read as follows: "I had a call from the client yesterday afternoon. When [the applicant] got home from court he had a chat to S on the telephone about what he remembers about the head splitting incident. S said he had no memory of it but added that he, KD and the complainant had been talking about it in the lounge room in Norton Street (so in the last 12 months). [The applicant] said: "Tell me exactly what happened, not what you think I want to hear, just the truth. Do you remember being in the room when [the complainant] split her eye open?" S said "No but mum and [the complainant] asked me to sit down and talk about old memories. Mum brought up when [the complainant] busted her eye and they told me that I was in the room." S said "I don't remember being in the room but they [KD and the complainant] told me I was in the room." I have spoken to the solicitor who acts for the client in his Family Law matters and unfortunately KD has sole PR for S so I really can't interview S without her consent. Any ideas?" 1. In evidence in cross-examination in the appeal, S gave the following evidence: "Q. So if your dad's solicitors had spoken to you before the trial, you would have told them about the conversation you overheard on the balcony? A. Yes." (T.9.18) 1. While Mr Brady SC was not aware of the potential of S concerning the conversation which he overheard in October 2015, had the legal representatives spoken to him, there is a strong likelihood that he would have told them about the conversation, if in fact it occurred. It is also clear from the evidence of Mr Brady SC that there were good and compelling reasons why neither he nor Ms Randall spoke to S, nor called him at trial. There were good forensic reasons for not calling S without first having a conference. But the evidence does not establish that S was unavailable, inaccessible or unknown to those advising and appearing on behalf of the applicant. 2. While it is acknowledged that "great latitude must be extended to an accused in determining what evidence by reasonable diligence could have been available at his trial" (R v Abou-Chabake at 428; [63]), in this case all that would have been required was for the legal representatives to have spoken to S who was a witness who may have had relevant evidence to give at the trial. The applicant's legal advisors could have subpoenaed him and he would have had to have attended, regardless of whether it was thought that this would be stressful or difficult for him. A considered decision was taken on instructions that they would not even speak to him and without any criticism being directed at those legal advisors, the reasons for that decision are clearly set out. 3. It follows, therefore, that objectively speaking the evidence was available at the trial and had S been spoken to, there were not insurmountable obstacles which would have prevented him giving evidence. This is not one of those cases where the existence of a witness was completely unknown. In this case there was the added information which emerged from the file note of Ms Randall that potentially S could give some evidence as to the credibility of KD and the complainant because the allegation made in the file note was that they had made some attempt to influence him. It is against that background that a forensic decision was taken not to call him. This was because there was the potential for the jury to believe that it was false but favourable evidence arranged by the applicant and that in all the circumstances, given the age and lapse of time and the contact between S and the applicant, it would be of little forensic value, or potentially of negative forensic value, to call S at the trial. 4. If that analysis is accurate, the evidence was in fact new evidence, not "fresh" evidence. If I am incorrect in that conclusion, and in that regard I am conscious of the considerable latitude to be granted to an accused when fresh/new evidence emerges, the next matter to be considered is whether the "fresh" evidence was credible or at least capable of belief or "plausible". 5. There are considerable difficulties with the credibility and plausibility of the evidence of S concerning the conversation which he said he overheard between his mother and the complainant. On one view, the conversation was capable of misinterpretation. This is particularly so when one has regard to the evidence of the complainant and KD to the effect that there had been a conversation in similar terms but to very different effect. In that conversation, the complainant had expressed her anxiety about giving evidence in the trial to which KD responded that a way of coping with that anxiety was to treat the giving of evidence like participating in a play or drama at school. 6. When one also takes into account the very stressful position of S, his conflicting loyalties to his mother and father, his young age and his firm belief that the complainant and his mother were telling lies, the likelihood of him misinterpreting what he heard and hearing what he wanted to hear is high. The difficulty with that approach is that both the complainant and KD were definite that such a conversation mentioning a play did not take place on the occasion identified by S. It is also difficult to reconcile the possibility of a misinterpretation of the first conversation with the further conversation which is said to have taken place the following morning between S and KD in which she is said to have asserted that it would be his word against hers. 7. There are a number of aspects of the evidence of the complainant and KD which support their credibility. KD's explanation for why she took her children for a holiday on this occasion and directed that there was to be no discussion of either the criminal trial or the Family Court proceedings has very much a ring of truth about it. Moreover, I found KD's response in cross-examination in the appeal to the proposition that she had told S that it would be her word against his, most convincing. Not only did she deny the proposition, she did so vehemently and indignantly. I found the description of the conversation in which a "play" was mentioned given by the complainant and KD independently of each other when their statements were obtained to also be persuasive. 8. There is, however, another and more fundamental difficulty with the evidence of S concerning the conversation. Looked at in isolation, there is an inherent improbability in his evidence that despite his belief that the complainant was telling lies (apparently confirmed by the conversation which he overheard) he made no attempt to communicate that conversation to the applicant, either in the six months before the trial, nor during the trial. It is clear from the evidence that they were in communication at that time. There is also an inherent implausibility in his failure to say anything when the applicant was convicted which S said was an outcome which he did not contemplate as likely. That would have been the time to reveal the conversation, not almost by accident when talking to CH, some considerable time later after the applicant had been sentenced. Even looked at isolation, his reasons for remaining silent are not compelling. 9. The evidence of S, however, is not to be looked at in isolation. It has to be looked at with the email of the diary note, which is Annexure "D", to the affidavit of Tracy Randall. That diary note makes it clear that far from "keeping out of it", S was prepared to and did discuss the trial and evidence in the trial with the applicant. The matter discussed was fundamental to the applicant's defence at trial, i.e. the circumstances in which the complainant had injured her eye. Moreover, he was quite prepared to tell the applicant of the improper conduct of the complainant and KD in not only trying to elicit information from him about that incident, but making a positive suggestion as to what had happened in that incident. Contrary to the evidence of S, the diary note indicated that there was no reluctance on his part to reveal to the applicant the apparent misconduct in that regard of the complainant and KD. As was put in oral submissions, that discussion between S and the applicant during the trial fundamentally undercut the evidence of S as to why he did not reveal the contents of the conversation between the complainant and KD at a much earlier point in time. 10. The contents of that diary note also sit uneasily with the second affidavit of S in which he deposed to a clear recollection of sitting on the couch watching television when he heard a noise and discovered that the complainant had hit her head. He also deposed to a clear recollection that he was not in the room at the time. The diary note strongly suggests that at the time of that conversation with the applicant, he had no recollection of the head splitting incident. When questioned further by the applicant, it is significant that S is said to have responded "I don't remember being in the room" not, as is set out in the second affidavit, "I was definitely not in the bedroom when it happened". 11. When one takes those matters into account, the explanation for not revealing the important conversation between the complainant and KD, either before or at the trial, lacks credibility and becomes implausible. This is because the conversation between S and the applicant, as set out in the diary note, was of a similar kind. Important evidence was discussed and S freely communicated his knowledge about it to the applicant and the contact which had occurred on that issue between him, KD and the complainant. It follows that I am not satisfied that the evidence of S as to the conversation which he said he heard between the complainant and KD before trial is credible and plausible. 12. There is also a difficulty with the third requirement in R v Abou-Chabake for the acceptance of such evidence. If the first two requirements have been made out, it is still necessary for the party seeking to adduce the "fresh evidence" to establish that the "fresh evidence" would have caused the jury to have entertained a reasonable doubt about the guilt of the accused. To establish that requires a general assessment of the Crown case. 13. This was a strong Crown case. It was not a case where the only evidence of the Crown was that of the complainant, some years after the offending, so that the case became essentially a word on word case. The Crown case had the added dimension of the recorded conversation in the park on 22 October 2014 (Exhibit 2). Although much of that conversation contained general assertions, as distinct from a description of specific incidents, its overwhelming effect was that the applicant was admitting to misconduct of a serious kind over a period of time. 14. There is a specific reference in the transcript of Exhibit 2 at p 5 which is replicated at [55] hereof. The importance of that part of the conversation is that the complainant identified the three locations where offending occurred, i.e. "mum's bed", "in my room" and "in your room". The applicant's response was not to deny the allegation but to try to excuse the conduct. Under cross-examination, he said that he gave the response which he did to "pacify" the complainant. While that response is clearly true so far as it goes, in that the applicant freely admitted that his intention was to dissuade the complainant from going to the police, it does not answer the Crown case. This was that the complete absence of denial of misconduct over the considerable period of time during which the conversation took place allowed the conversation to be taken as a series of admissions on his part to the offending. 15. In particular, in that part of the conversation to which reference has been made and in other parts, it is quite apparent that the complainant was not referring to a single incident but to a number of incidents which occurred over a period of time. This is quite inconsistent with the positive case put forward by the applicant, i.e. that there was a single incident which was initiated by the complainant and which over time became greatly exaggerated. 16. The fact of the applicant's acquittal on Counts 13 and 14 does not erode the strength of the Crown case in relation to Counts 1 – 12. The matters raised in Counts 13 and 14 occurred much later than the earlier offending, the complainant was aged 17, they were not included in the original statement made by the complainant and they involved offending of a relatively minor kind when compared to the other counts. In those circumstances, it is clear why the jury might not have been persuaded beyond reasonable doubt as to their occurrence without that necessarily involving a rejection of the complainant's credit. 17. I have concluded that in the context of the evidence given at trial, the "fresh" evidence relied upon by the applicant was unlikely to have caused the jury to have entertained a reasonable doubt as to his guilt, or alternatively, that there was no significant possibility that the jury acting reasonably would have acquitted him. 18. It follows that none of the requirements for the admissibility of "fresh" evidence in Abou-Chabake have been made out. This ground of appeal should be dismissed. SENTENCE APPEAL 1. As noted above, on 1 July 2016 King SC DCJ sentenced the applicant to an aggregate term of imprisonment of 16 years with a non-parole period of 12 years to date from when he went into custody following the verdict on 9 May 2016. 2. Each of the seven offences contrary to s 66C(2) of the Crimes Act carried a maximum penalty of 20 years imprisonment with no standard non-parole period. Each of the five offences contrary to s 61M(1) of the Crimes Act carried a maximum penalty of 7 years with a standard non-parole period of 5 years. 3. The applicant is eligible for release to parole on 8 May 2028 and the total sentence will expire on 8 May 2032. 4. The indicative sentences for the various counts were as follows: Count (episode) Offence Nature of Conduct Indicative Sentence Total/NPP 1 (1) s66C(2) Digital/Vaginal intercourse 7 years 2 (2) s61M(1) Kissing with open mouth 2 years/1 year 6 months 3 (2) s61M(1) Pressing penis to victim's back 2 years/1 year 6 months 4(3) s66C(2) Digital/Vaginal intercourse 7 years 5(4) s61M(1) Kissing with open mouth 2 years 4 months/1 year 9 months 6(4) s61M(1) Placing victim's hand on erect penis over his shorts and moving it. 3 years /2 years 3 months 7(4) s66C(2) Fellatio 10 years 8(4) s66C(2) Cunnilingus 10 years 9(4) s61M(1) Using hands and tongue on victim's breasts 2 years 8 months/ 2 years 10(4) s66C(2) Penile vaginal intercourse 10 years 11(4) s66C(2) Fellatio 10 years 12(4) s66C(2) Digital/Vaginal intercourse 10 years 1. The applicant seeks leave to appeal his sentence on the following grounds: Ground 3 – The learned sentencing judge erred in failing to make a proper assessment of the objective seriousness of the offences against s 66C(2) Crimes Act. Ground 4 – That in all the circumstances the sentence was manifestly excessive. Sentence proceedings 1. Sentence proceedings were conducted before the sentencing judge on 10 June 2016. The Crown tendered a bundle of documents, including written submissions and the criminal record of the applicant. The applicant tendered a psychological report by Rachel Hart and nine character references. The applicant did not give evidence on sentence. The complainant gave evidence in person in terms of her victim impact statement. 2. His Honour described the offending in the terms set out above and in accordance with the verdict of the jury. His Honour noted that the offending occurred on four separate occasions within a relatively short period of time of approximately three weeks. He characterised the offending on the first, second and third occasions as comparatively limited. His Honour characterised the offending on the fourth occasion as follows: "However emboldened by his successful misconduct, and the complainant's acquiescence and failure to alert any adult or other relevant person to his conduct, the offender then engaged in what can only be referred to as an horrendous course of sexual misconduct on the fourth occasion, involving eight separate acts of sexual abuse covering a significant range of individual acts of sexual misconduct, preceded by the showing to her of adult pornography which can only have been designed to desensitise her to the conduct he was about to embark on." (Sentence judgment, 8.8) 1. His Honour noted that while the sexual offending occurred within a relatively brief period of time, there was clearly a significant escalation within that period and because the complainant was then aged 11, each of the offences was of a serious nature. His Honour assessed three of the acts of indecency, i.e. the two incidents of kissing and pressing his erect penis against the complainant's lower back, as being towards the lower end of the range of objective seriousness for such offences. He regarded the other indecency offences which occurred on the fourth occasion as mid-range offences. 2. In relation to the s 66C(2) offences, his Honour said: "The legislation makes no distinction between different forms of sexual intercourse. That is digital penetration of the vagina, penile penetration of the vagina, fellatio and cunnilingus are not distinguished in any way from each other. Any distinction depends on the circumstances of the individual matter. Counts 1 and 4 being both incidents of digital vaginal sexual intercourse occurring on the first and third occasion are less significant than the later incidents whether they be fellatio, cunnilingus or penile or digital penetration. In relation to the matters occurring on the fourth occasion, each of the acts of sexual intercourse was a serious act of sexual offending as part of an ongoing series of events and must be regarded as objectively serious." (Sentence judgment, 9.8 – 10.2) 1. The sentencing judge noted from the victim impact statement that the complainant had been most adversely affected by the conduct of the applicant, whom she trusted and whose trust he breached. His Honour observed that it was notorious that young victims of sexual offending are badly scarred and that they carry these scars for a significant period of time, if not for the remainder of their lives. Those scars affect their general enjoyment of life and can create problems for them in being able to relate to other persons even as adults and even after significant assistance from counselling and treatment. His Honour placed the complainant in that category. 2. The sentencing judge had regard to the applicant's subjective case. At the time of the offending he was aged approximately 31. He was 39 at the time of sentence. He had been married to KD for approximately six years at the time of the offending. His criminal record was irrelevant to the sentence proceedings in that it comprised a mid-range PCA and behaving in a disorderly manner in 1995. 3. The sentencing judge noted that the significant number of references indicated that the authors held the applicant in high regard and many had known him for over 25 years. His Honour accepted that the applicant had been a well respected member of the community and a contributor to social organisations, including a number of sporting clubs, for significant periods of time. His Honour noted that the applicant was born in Australia and was the eldest of two children. Both his parents worked and he had a stable upbringing which was well supported and he was close to his parents and sibling. The family moved to Ballina when he was aged 12. There was no history of mental health problems. His Honour accepted that the applicant had a close and continuing relationship with his parents and his sister and extended family who remained supportive of him. 4. The applicant had been a very good sportsman and had played representative football for NSW. He had been in stable employment from the age of 18 and his most recent employment before going into custody was that of a plant supervisor with Boral Asphalt. 5. He was at the time the sole financial provider for his family, having formed a relationship since being divorced from KD. CH was his new partner, who had one child of a former relationship and who at the time of sentencing, was expecting the birth of the applicant's child. The applicant had no significant medical history and was in good health. 6. His Honour found that there was nothing contained in the psychological report which provided any insight into the applicant's misconduct except for an observation by the psychologist that "...[his] offending behaviour may have been driven by a need for sexual contact and gratification at a time of poor coping and unmet sexual needs". The applicant continued to deny the offending and was assessed by the psychologist as being at a low risk of re-offending. His Honour thought that assessment had to be considered against the fact that so far the applicant had refused to confront his offending. 7. His Honour relied upon the following statement of principle by Fullerton J (with whom Spigelman CJ and Barr J agreed) in R v PGM [2008] NSWCCA 172 at [44]: "44 In this case, while his Honour was entitled to take the respondent's previous good character into account, to afford it "very significant weight", in my view, failed to recognise the pattern of repeat offending over a period of seven months in the course of an ongoing relationship between the respondent and the child - a relationship which was deliberately fostered by him for his own sexual gratification. Where these features are present a finding that the criminal conduct is out of character fails to recognise that a determined and conscious course of offending, perhaps in the expectation that the child may not see the offending conduct as wrong thereby both avoiding detection and maximising the opportunity for repeated offending, diminishes the mitigating impact of a finding of good character." 1. The sentencing judge substantially rejected the submission by the applicant that the court should take into account for his benefit the voluntary cessation of the offending conduct. This was because the terms in which the complainant spoke to the applicant following the fourth episode of offending made it clear that if he continued to offend, there was a high risk that the complainant would disclose what he had done. His Honour found that although the applicant did cease the conduct, it was because of fear of disclosure and in circumstances where he continued to emotionally endeavour to control the complainant to prevent her from making such disclosure. 2. His Honour took into account that both general and specific deterrence were important factors in sentencing the applicant. In respect of each of the indicative sentences, his Honour said: "In relation to each of the offences represented by counts 7, 8, 10, 11 and 12, while I have increased the indicative sentence from the sentences indicated in respect of count 1 and 4, also being offences of sexual intercourse, I have provided an indicative sentence of the same length in respect of each of counts 7, 8, 10, 11 and 12 because they occurred on the one occasion. The legislation makes no distinction between the different acts and in my view it is appropriate to provide the same indicative sentence for each of those matters." (Sentence judgment, 19.6) 1. His Honour declined to make a finding of special circumstances. His Honour also observed that there was a need to accumulate between the individual offences, as well as to accumulate between the individual occasions of offending. THE SENTENCE APPEAL Ground 3 – The learned sentencing judge erred in failing to make a proper assessment of the objective seriousness of the offences against s 66C(2) of the Crimes Act. 1. The applicant submitted that his Honour was required to do more than assess the sexual intercourse offences as "serious". He submitted that his Honour had failed to properly analyse the various counts and the circumstances of the offending. The applicant submitted that there was no consideration of such matters as the nature of the act, the use or absence of force, the degree of penetration or the duration of the act. These considerations affected the determination of the seriousness of the particular offence against other offences of its type. The applicant submitted that in failing to make a proper assessment of the objective seriousness of these offences, his Honour had erred (Gal v R [2015] NSWCCA 242; R v Ejefekaire [2016] NSWCCA 308; Franklin v R [2016] NSWCCA 319). Consideration 1. In the present case the sentencing judge, having presided over the trial, demonstrated in his sentence judgment a familiarity with the facts and made relevant observations on objective features. No particular fact bearing upon the objective gravity of the offences was overlooked. The applicant has not identified any such fact. 2. The extent to which findings of fact and matters of evaluation need to be specified in detail will depend upon the facts and circumstances of the case: Cook v R [2010] NSWCCA 191 at [28] per Hall J (with whom Basten JA and Price J agreed). Error will not be demonstrated by a failure of the sentencing judge to include some specific formula of words reflecting their assessment: Gal v R at [33] (per Beech-Jones J, Bathurst CJ and Price J agreeing) citing Delaney v R; R v Delaney [2013] NSWCCA 150 at [56]). 3. A summary of his Honour's findings as to the objective seriousness of the offending is set out at [202] – [204] hereof. The effect of his Honour's analysis was: 1. The complainant at 11 was towards the bottom of the age range covered by a s 66C(2) charge, i.e. between 10 – 14 years. 2. That the offending occurred on four separate occasions within a relatively short space of time. 3. The offending on the first, second and third occasions was of comparatively limited seriousness. 4. Whilst the offending on the fourth occasion occurred within a "relatively brief period of time" there was a "significant escalation within that period of time" and that each of the acts was "of a serious nature". 5. The digital penetration which constituted Count 1 (first occasion) and Count 4 (third occasion) was less significant than the later forms of sexual intercourse. 6. That in the context of this offending, his Honour did not draw a distinction in terms of seriousness between the different forms of penetration which took place on the fourth occasion. 7. That each of the acts of sexual intercourse on the fourth occasion was "a serious act of sexual offending as part of an ongoing series of events and must be regarded as objectively serious". 8. The offending was "an outrageous breach" of the trust that the complainant as his stepdaughter had in the applicant. 1. That list of matters shows that the sentencing judge did not fail to undertake any analysis of the various counts but explained that due to the nature of the fourth incident overall, he considered each of the individual acts of sexual intercourse carried out during that incident to be of equivalent gravity. When coming to impose sentence, his Honour referred again to his finding that it was appropriate to provide the same indicative sentence for each of the acts of sexual intercourse occurring as part of the fourth incident. 2. While some assessment of objective gravity is appropriate as part of the sentencing process, this does not give rise to an obligation to provide elaborate reasoning in the circumstances of a particular case. It was not necessary to make a finding as to where precisely the offence lay in the spectrum of offending: Bland v R [2014] NSWCCA 82 at [143]. His Honour identified the features of the offending which contributed to his finding that the offences were objectively serious (Simpson v R [2014] NSWCCA 23 at [27]). 3. No error has been demonstrated and this ground of appeal has not been made out. Ground 4 – That in all the circumstances the sentence was manifestly excessive. 1. The applicant accepted that to establish manifest excess he had to demonstrate that the sentence was "unreasonable or plainly unjust" so that error, though not specifically identifiable, must have occurred. 2. While the applicant accepted that an aggravating feature of the offending was that he was in a position of authority and trust in relation to the complainant, they were not the only considerations. Although there were a significant number of offences, they were all committed in a relatively short period against a single complainant. The period separating the four episodes was between five days and a week or so, suggesting a total period of about three weeks. The applicant submitted that this distinguished the present case from cases involving multiple complainants or prolonged abuse, in many cases over years, reflected either in multiple counts or representative counts or both. 3. The applicant submitted that he had a strong subjective case in that he was aged 31, had one son and at the date of sentence a second child was due in August 2016. He had been in stable employment from the age of 18. Since being divorced from KD, he had formed a new relationship with a partner who already had one child and at the time of sentence was expecting the birth of his child. He was a person of good character who had done much to benefit his local community. 4. The applicant submitted that having regard to those objective and subjective features, the sentence was manifestly excessive. The applicant accepted that individual cases did not establish that a particular sentence was unjust, but in circumstances such as existed here where the pool of comparable cases was relatively small, a consideration of individual cases involving similar types of offending could collectively provide support for his submission. 5. In R v PGM [2008] NSWCCA 172 the offender was a neighbour of the child victim and the six offences occurred over a period of seven months (October 2003 – May 2004). Three offences were contrary to s 66A of the Crimes Act which carried a maximum penalty of imprisonment for 25 years and a standard non-parole period of 15 years. The remaining three charges were contrary to s 61M(2) which carried a maximum penalty of imprisonment for 10 years with a standard non-parole period of 5 years. There were two offences on a Form 1 of possession of child pornography. Of the s 66A offences, two involved sexual intercourse in the nature of cunnilingus and one involved penile/vaginal sexual intercourse. 6. This was a Crown appeal. In resentencing, Fullerton J assessed the s 66A offending as just outside the midrange. In relation to each of the s 66A offences the sentence imposed was imprisonment for 9 years with a non-parole period of 6 years and in relation to each of the s 61M(2) offences, the sentence imposed was imprisonment for 6 years with a non-parole period of 4 years. The sentence ultimately imposed by the Court was imprisonment for 9 years and 6 months with a non-parole period of 7 years and 6 months. 7. In BIP v R [2011] NSWCCA 224 the offender was the stepfather of three complainants. He pleaded guilty to two offences contrary to s 66C(2) and two offences of aggravated acts of indecency. There was a Form 1 document which contained four counts of aggravated acts of indecency. 8. The offending in this case occurred over a lengthy period of time and involved multiple victims. The offences were representative counts in the context of persistent abuse. The Court of Criminal Appeal allowed the offender's appeal and resentenced him to imprisonment for 13 years with a non-parole period of 8 years and 6 months. 9. The applicant referred the Court to JIRS statistics for offences against s 66C(2) before the introduction of the standard non-parole period. (The standard non-parole period of 9 years was introduced effective from 29 June 2015.) Those statistics showed that 46 – 51 cases resulted in fulltime imprisonment and only 2 per cent received a longer aggregate sentence than did the applicant. With respect to indicative sentences, only 4 per cent of offenders received a higher sentence for a single count than the sentences imposed by his Honour in respect of Counts 7, 8, 10, 11 and 12. The applicant submitted that while his offences were extremely serious, having regard to those cases and the statistics referred to, they would not be expected to result in sentences at the top of the range. Consideration 1. With respect to the use of statistics in comparative cases in support of a manifest excessive ground, Bellew J (with whom Macfarlan JA and Adamson J agreed) said in MLP v R [2014] NSWCCA 183: "41 Firstly, consistency in sentencing is not demonstrated by, and does not require, numerical equivalence. What is sought is consistency in the application of the relevant legal principles: Hili v R; Jones v R [2010] HCA 45; (2010) 242 CLR 520 at [48]-[49]. 42 Secondly, in seeking consistency, other cases may establish a range of sentences which have been imposed. But the sentences imposed in other cases do not mark the outer bounds of the permissible sentencing discretion. They stand as a yardstick against which to examine a proposed sentence. What is important are the unifying principles which such sentences reveal and reflect: Barbaro v R; Zirilli v R [2014] HCA 2; (2014) 305 ALR 323 at [41]. 43 Thirdly, the presentation of sentences passed in the form of numerical tables and graphs is of limited use: Hili (supra) at [48]. This is because reference to the lengths of sentences passed says nothing about why the sentences were fixed as they were. 44 Consistent with such statements of principle, this Court has emphasised the need to adopt a careful approach when asked to utilise statistics: R v Nikolovska [2010] NSWCCA 153 at [117] per Kirby J, Beazley JA (as her Honour then was) and Johnson J agreeing. A similarly careful approach is required when the Court is asked to compare a sentence imposed in one case with a sentence imposed in another: RLS v R [2012] NSWCCA 236 at [132] per Bellew J, McClellan CJ at CL and Johnson J agreeing. The need to take care in each instance arises, in part, from the fundamental fact that there will inevitably be differences, both in terms of the objective circumstances of offending and the subjective circumstances of the offender, between one case and another." 1. The comparative cases referred to by the applicant involved sentencing for different offences (R v PGM) and sentencing after a plea of guilty (BIP v R) and were therefore, of very limited use in assessing whether the sentence in this case was unreasonable and plainly unjust. 2. The sentencing judge in the present case held that the offender engaged in "an horrendous course of sexual misconduct" on the fourth occasion. His Honour held that the offending was an outrageous breach of trust and that the complainant had been seriously damaged by it, although to no greater extent than contemplated by the offence provisions. Further, after the offending and over a period of time, the applicant engaged in conduct designed to control the complainant and emotionally blackmail her, causing her to fear the consequences of any revelation of the offending conduct. 3. The sentencing judge did not find that the cessation of the conduct provided strong evidence of remorse, contrition and rehabilitation as submitted on behalf of the applicant in the sentence proceedings. On the contrary, there was a strong element of self-interest in the applicant's decision to cease his offending conduct against the complainant. 4. His Honour took into account the applicant's subjective case, including his stable work record, his contributions to the community and the significant number of references indicating that he was held in high regard in the local community. He had the continued support of his family and was the sole financial provider for his new partner and his child, as well as the unborn child. He was assessed by a psychologist as having a low risk of re-offending, although his Honour's acceptance of that finding was "guarded". 5. In accordance with well settled principles, to succeed on this ground the applicant must establish that the sentence was "unreasonable" or "plainly unjust": Markarian v The Queen [2005] HCA 25; 228 CLR 357 at 372 [25] and Hili v The Queen; Jones v The Queen [2010] HCA 45; 242 CLR 520 at 538 – 539; [59]. Consideration of whether a sentence is unreasonable or plainly unjust is undertaken in the context that there is no single correct sentence and that sentencing is not a mathematical exercise. Accordingly, sentencing judges are to be allowed as much flexibility as is consonant with consistency of approach and applicable sentencing principle and the Court will not interfere with a sentence merely because it may have exercised its discretion differently: Markarian at 367; [27] – [28]. 6. The aggregate sentence imposed in the present case is stern. The troubling feature about it is that of the 12 counts on the indictment, eight occurred as part of a single episode of offending. Indicative sentences amounting to imprisonment for in excess of 57 years were proposed in respect of that episode. The conduct giving rise to the first four counts occurred on three occasions and was less serious. The offending comprised four episodes that occurred over a period of no more than three weeks with one complainant. 7. In those circumstances, despite the undoubted seriousness of the offending, I have concluded that the aggregate sentence imposed by his Honour is manifestly excessive and therefore unreasonable. This is because insufficient regard was had to the fact that most of the offending occurred on one occasion, which itself occupied a relatively short period of time. While the totality of the applicant's conduct required condign punishment, the sentence ultimately imposed is outside the appropriate range for these offences. It is therefore necessary to resentence the applicant. 8. No additional evidence was placed before the Court on resentence. No challenge was made to the specific findings by the sentencing judge. Accordingly, what is required is to take those findings into account and re-exercise the sentencing discretion. In doing so, I would change the indicative sentences so that the sentences proposed for Counts 1 and 4 would be 6 years and those proposed for Counts 7, 8, 10, 11 and 12 would be 8 years. I would also allow a greater level of concurrency in relation to the indicative sentences proposed in respect of Counts 5 – 12. Using that approach, I would impose an aggregate sentence of imprisonment for 14 years with a non-parole period of 10 years and 6 months. 9. The orders which I propose are: 1. Leave to rely upon conviction ground of appeal 1 is refused. 2. Leave to rely upon conviction ground of appeal 2 is granted but the appeal is dismissed. 3. Leave to appeal against sentence is granted and the appeal against sentence is allowed. 4. The sentence imposed by King SC DCJ on 1 July 2016 is quashed and in lieu thereof the applicant is sentenced to imprisonment with a non-parole period of 10 years and 6 months, commencing 9 May 2016 and expiring 8 November 2026 and a total sentence of imprisonment of 14 years. The applicant is eligible for release to parole on 8 November 2026 and the total sentence will expire on 8 May 2030. 1. LATHAM J: I have had the advantage of reading Hoeben CJ at CL's draft judgment. I agree with his Honour's conclusions with respect to Grounds 1 and 2 of the conviction appeal, and Ground 3 of the sentence appeal, and with the reasons expressed by his Honour. 2. I am unable to agree however that the sentence imposed upon the applicant is manifestly excessive. My reasons for arriving at a different view from that of his Honour may be briefly stated. 3. I accept that the sentence is "stern" and that the course of the offending represented by the convictions was a period of about three weeks. It is also pertinent that eight of the twelve offences occurred on one occasion. 4. The sentencing judge was required to sentence the applicant on each of the offences on the indictment to which verdicts of guilty were returned, having regard to the purposes of sentencing and relevant factors under s 21A of the Crimes (Sentencing Procedure) Act 1999. The availability of the mechanism provided for by s 53A of the Crimes (Sentencing Procedure) Act does not in any way modify that approach: R v Brown [2012] NSWCCA 199 at [17] ; JM v R [2014] NSWCCA 297. A number of the propositions explored by R A Hulme J at [39] and [40] in JM (Hoeben CJ at CL and Adamson J agreeing) are worth repeating:- 4. It is still necessary in assessing the indicative sentences to have regard to the requirements of Pearce v The Queen [1998] HCA 57; 194 CLR 610. The criminality involved in each offence needs to be assessed individually. To adopt an approach of making a "blanket assessment" by simply indicating the same sentence for a number of offences is erroneous: R v Brown [2012] NSWCCA 199 at [17], [26]; Nykolyn v R, supra, at [32]; [56]-[57]; Subramaniam v R [2013] NSWCCA 159 at [27]-[29]; SHR v R, supra, at [40]; R v Lolesio [2014] NSWCCA 219 at [88]-[89]. It has been said that s 53A(2) is "clearly directed to ensuring transparency in the process of imposing an aggregate sentence and in that connection, imposing a discipline on sentencing judges": Khawaja v R, supra, at [18]. 5. The imposition of an aggregate sentence is not to be used to minimise the offending conduct, or obscure or obliterate the range of offending conduct or its totality: R v MJB, supra, at [58]-[60]. 6. One reason why it is important to assess individually the indicative sentences is that it assists in the application of the principle of totality. Another is that it allows victims of crime and the public at large to understand the level of seriousness with which a court has regarded an individual offence: Nykolyn v R, supra, at [58]; Subramaniam v R, supra, at [28]. A further advantage is that it assists when questions of parity of sentencing as between co-offenders arise: R v Clarke, supra, at [68], [75]. … 11. The indicative sentences recorded in accordance with s 53A(2) are not themselves amenable to appeal, although they may be a guide to whether error is established in relation to the aggregate sentence: R v Brown, supra, at [17]; Nykolyn v R, supra, at [58]; PD v R [2012] NSWCCA 242 at [44]; R v Rae [2013] NSWCCA 9 at [32]-[33], [42]-[43]; Truong v R; R v Le; Nguyen v R; R v Nguyen, supra, at [218], [227]; Subramaniam v R, supra, at [28]; SHR v R, supra, at [40]; R v Clarke, supra, at [56]; Martin v R [2014] NSWCCA 124 at [47]; JL v R [2014] NSWCCA 130 at [17]; Stoeski v R, supra, at [43]; CL v R [2014] NSWCCA 196 at [53]-[55]. 12. Even if the indicative sentences are assessed as being excessive, that does not necessarily mean that the aggregate sentence is excessive: PD v R at [44],[82]; BJS v R [2013] NSWCCA 123 at [252]-[254]. 13. A principle focus of determination of a ground alleging manifest inadequacy or excess will be whether the aggregate sentence reflects the totality of the criminality involved: R v Brown, supra, at [37]; R v Rae, supra, at [42]-[46], [62], [69]. This Court is not in a position to analyse issues of concurrence and accumulation in the same way that it can analyse traditional sentencing structures: Truong v R; R v Le; Nguyen v R; R v Nguyen, supra, at [231]; Martin v R, supra, at [33]-[41]. 1. There was no complaint made by the applicant in relation to the indicative sentences, nor, as Hoeben CJ at CL has observed, to the specific findings of the sentencing judge which are summarised in the judgment of the Chief Judge. It may be observed that the judge imposed a sentence of 7 years on each of two incidents of sexual intercourse, committed on two separate occasions (Counts 1 and 4), followed by a sentence of 10 years on each of five later incidents of sexual intercourse, committed on one occasion (Counts 7, 8, 10, 11 and 12). To my mind, this represents the application of conventional sentencing principles, consistent with proposition 4 from R A Hulme J's judgment in JM. The sentences on counts 1 and 4 reflect the criminality inherent in those offences that were first in time, whilst the sentences on counts 7, 8, 10, 11 and 12 reflect an escalation in the applicant's criminal offending. 2. The "principal focus" therefore becomes whether the aggregate sentence reflects the totality of the criminality involved. In Cahyadi v R [2007] NSWCCA 1; 168 A Crim R 41, Howie J said (Adams and Price JJ agreeing) :- 27 In any event there is no general rule that determines whether sentences ought to be imposed concurrently or consecutively. The issue is determined by the application of the principle of totality of criminality: can the sentence for one offence comprehend and reflect the criminality for the other offence? If it can, the sentences ought to be concurrent otherwise there is a risk that the combined sentences will exceed that which is warranted to reflect the total criminality of the two offences. If not, the sentences should be at least partly cumulative otherwise there is a risk that the total sentence will fail to reflect the total criminality of the two offences. This is so regardless of whether the two offences represent two discrete acts of criminality or can be regarded as part of a single episode of criminality. Of course it is more likely that, where the offences are discrete and independent criminal acts, the sentence for one offence cannot comprehend the criminality of the other. Similarly, where they are part of a single episode of criminality with common factors, it is more likely that the sentence for one of the offences will reflect the criminality of both. (italics not in original) 1. Some accumulation was called for in order to adequately reflect the totality of the applicant's criminality over four separate episodes of sexual offending, and, within episode four, five discrete acts of sexual intercourse (fellatio (2), cunnilingus, penile vaginal intercourse and digital vaginal intercourse) and three discrete acts of indecent assault. I accept that the degree of partial accumulation for the offences committed during the fourth episode should be of a very modest order. 2. Taking each episode in turn, and assuming no accumulation of sentences for offences committed within each episode, the sentences to be partially accumulated were 7 years, 2 years, 7 years and 10 years. When the commission of two offences during episode two, and eight offences during episode four are taken into account, an aggregate sentence of 16 years does not, in my view, fall so far outside the sentencing discretion that it warrants the intervention of this Court on the ground of manifest excess. Acknowledging as I do that the sentence is a heavy one, the applicant has not persuaded me that it is plainly unreasonable or unjust. 3. I would grant leave to appeal against sentence but dismiss the appeal. 4. N ADAMS J: I have had the considerable advantage of reading the judgment of Hoeben CJ at CL in draft. With respect to the appellant's appeal against conviction, I respectfully agree with the reasons of his Honour in relation to both grounds and with the orders that his Honour proposes. I would like, however, to add the following observation in respect of the test as to whether the proposed evidence of S was "fresh". 5. His Honour makes the finding that the proposed evidence of S was not "fresh" based on the proper application of the test of "freshness". The principles are well established and were restated in ALS v R [2013] NSWCCA 63 at [68] as whether the material: "…could not with reasonable care have been discovered previously (R v Saleam (1989) 16 NSWLR 14 at 21 per Hunt J), or 'could not then have been available to the appellant by the exercise on his part of reasonable diligence in the preparation of his case' (Ratten at 516 per Barwick CJ)." 1. As Hoeben CJ at CL has noted above at [179] – [180], in order for the evidence of S to have been available at the time of the trial all that would have been required was for the appellant's then legal representatives to have spoken to S and then subpoenaed him. He would have then been obliged to attend court. 2. Although his Honour expressly states (at [179]) that no criticism can be directed at the appellant's legal advisors in this regard, implicit in the finding, by necessity, is a conclusion that there has been a lack of reasonable care or diligence on their part. It seems to me that what happened in the present case is not amenable to the well-recognised test for "freshness". There is no suggestion of any lack of reasonable care or diligence on the part of the appellant's legal advisors. On the contrary, the evidence shows that they had regard to the advice of Family and Community Services that it would be harmful to S to be called as a witness and acted on its instructions not to put S through the ordeal of giving evidence at the trial. 3. Ultimately, nothing really turns on this for the purposes of the present appeal. Even if I formed the view that the evidence was fresh, I am not satisfied, for the reasons given by Hoeben CJ at CL, that the evidence of S was credible, or that it was likely to have caused the jury to have entertained a reasonable doubt as to the appellant's guilt. To put it another way, given the other evidence in the Crown case, including the recorded admissions, I am satisfied that there was no significant possibility that the jury acting reasonably would have acquitted the appellant had the fresh evidence been before it at the trial: Van Beelen v The Queen [2017] HCA 48 at [22], applying Mickelberg v The Queen (1989) 167 CLR 259; [1989] HCA 35. 4. Turning to the application for leave to appeal against sentence, I have read the draft judgment of Hoeben CJ at CL concerning Grounds 3 and 4 and the additional reasons of Latham J. Their Honours are in agreement that Ground 3 should be dismissed. I agree with their Honours in relation to that ground of appeal. 5. Their Honours have reached different conclusions in relation to whether the aggregate sentence imposed by King SC DCJ fell so far outside of the sentencing discretion as to warrant the intervention of the Court. I have considered their Honours' respective conclusions carefully. Simpson JA recently explained the issues that arise in a ground of appeal relying upon the fifth type of error recognised in House v The King (1936) 55 CLR 499; [1936] HCA 40 in R v Nakash [2017] NSWCCA 196 at [14] as follows: "A necessary concomitant of the fact that sentencing is a discretionary exercise is that it can never be said that there is only one correct sentence that can be imposed and that will meet the requirements of sentencing, and represent a just outcome, taking into account the objective gravity of the offence and the matters personal to the offender. Inevitably, in any sentencing exercise, there will be an upper limit beyond which a sentence would be "unreasonable or plainly unjust", and a lower limit, a sentence below which would fail to meet the demands of sentencing principles. Those limits are determined by the full panoply of relevant sentencing considerations, including, not only the objective gravity of the offence and the personal circumstances of the offender, but also more general considerations such as the need (the extent of which will vary from case to case) for the sentence to reflect an element of general deterrence." 1. In determining whether Ground 4 is established in this matter I have had regard to the "panoply of relevant sentencing considerations", including the statutory guideposts, the objective gravity of the offending (including the length of time over which the offences occurred), the length of the indicative sentences, the principle of totality, the appellant's subjective circumstances, the Judicial Commission statistics, and any assistance to be derived from other decisions of this Court. 2. The starting point is that the applicant was sentenced in relation to seven offences contrary to s 66C(2) of the Crimes Act 1990 (NSW). Offences contrary to 66C(2) carry a maximum penalty of 20 years' imprisonment. He was also sentenced in relation to five offences contrary to s 61M(1) of the Crimes Act, which at the relevant time carried a maximum penalty of seven years' imprisonment and a standard non-parole period of five years. 3. The offences occurred in 2007. The maximum penalty for the conduct encompassed by s 66C(2) of the Crimes Act was doubled from 10 years' imprisonment to 20 years' imprisonment from 1 February 2003, four years before the commission of these offences: Crimes Amendment (Sexual Offences) Act 2003 (NSW), Schedule 1. Prior to that date, s 66C created only one offence: sexual intercourse with a child aged of or above 10 years and under 16 years. That is, no distinction was made between children aged under 14 and children aged over 14 before the 2003 amendments. The maximum penalty was eight years' imprisonment, rising to ten years if the child was under the authority of the offender. 4. Since 1 February 2003, s 66C(1) has provided that the maximum penalty for the offence of sexual intercourse with a child above 10 years but under 14 years is imprisonment for 16 years. Similarly, s 66C(2) provides that the maximum penalty is 20 years' imprisonment if the child is under the authority of the offender, as occurred in this case. It is to be noted that s 61M(2) was amended effective from 2 January 2009 such that it would now capture the applicant's offending behaviour. Section 61M(2) carries a maximum penalty of ten years and a standard non parole period of eight years. 5. Although there was no standard non-parole period applicable to the s 66C(2) offence at the time of these offences, there now is. That is, if the offences had been committed on or after 29 June 2015, a standard non-parole period of nine years would have applied: Crimes Legislation Amendment (Child Sex Offences) Act 2015 (NSW). This standard non-parole period thus has no bearing on the sentencing of the applicant in this case. 6. Increases in maximum penalties and the enactment of standard non-parole periods reflect community concern as to the seriousness with which the courts should view child sexual assault offences. 7. The facts of the applicant's offending, as recounted in the judgment of Hoeben CJ at CL at [6] to [48] reveal a disturbing distortion of the relationship between a 31-year-old man and his 11-year-old stepdaughter. The evidence before the Court is that the appellant treated the complainant as a substitute for an adult sexual partner. I do not propose to set the facts out again as his Honour has already done so in some detail, but some salient details warrant repeating. From the age of 4, the complainant referred to the applicant as "Dad". Shortly before the applicant committed Counts 2 and 3 on the indictment, being offences of indecent assault, he embraced the complainant one morning and told her that she smelt "fresh". When the complainant asked him what he meant by this, he responded, "It means your vagina smells because you're horny. Give me a kiss." It was after this comment that the applicant forced his tongue into the complainant's mouth and, after asking her for a "cuddle", pressed his erect penis against her lower back. 8. During the fourth occasion of sexual offending against the complainant, the applicant exposed her to a pornographic film, told her to kiss him "like before", caused her to fellate him, and performed cunnilingus on her. He brought his erect penis close to her face and said, "I bet you haven't seen a penis this close to you before. I've got a big dick don't I?" Later, whilst the applicant was performing cunnilingus on the complainant, she sat up and said "Dad". He responded by saying to her, "Don't call me Dad. Call me [the applicant's first name]." After that, he touched the complainant's nipples with his hands and tongue, asking, "Does that feel good?" The complainant replied, "I can't really feel anything." The applicant said, "That's weird because your Mum's are so sensitive." 9. These aspects of the offences are worth highlighting in that they demonstrate the complete betrayal of the familial relationship between the complainant and the applicant. The complainant ought to have been able to rely on the applicant for protection and to look up to him as a father figure. 10. Justice Hoeben has summarised the sentencing judge's findings as to the objective seriousness of the offending above at [202] – [204], under his Honour's consideration of Ground 3. Of particular significance are that the complainant was towards the bottom of the age range covered by a s 66C(2) charge, that King DCJ found that each of the acts of sexual intercourse on the fourth occasion was "a serious act of sexual offending as part of an ongoing series of events and must be regarded as objectively serious", and that his Honour considered the offending was "an outrageous breach" of the trust that the complainant had in the applicant as his stepdaughter. 11. The indicative sentences for the first two offences contrary to s 61M(1) (open-mouth kissing and pressing his erect penis to the victim's back) were imprisonment for two years. For the second occasion of open-mouth kissing, the indicative sentence was imprisonment for two years and four months. For using his hands and tongue on the complainant's breasts and placing her hand on his erect penis over his shorts and moving it, the indicative sentences were two years and eight months and three years respectively. Although an application for leave to appeal against sentence lies from the aggregate sentence only, regard can still be had to the indicative sentences in order to consider whether they indicate error in the aggregate sentence: JM v R [2014] NSWCCA 297 at [39](11). When regard is had to the statutory guideposts, I do not consider that any of the indicative sentences for the indecent assault offences suggest error in relation to the aggregate sentence. The more pertinent indicative sentences were those identified for the s 66C(2) offences. 12. The indicative head sentences for the seven offences contrary to s 66C(2) were seven years' imprisonment for the first two occasions (digital penetration) and ten years' imprisonment for the remaining five occasions. Those five offences all occurred in the course of the same incident and involved penile-vaginal intercourse, cunnilingus, digital penetration and two instances of fellatio. 13. Justice Latham has observed that no specific complaint was made about any of the indicative sentences. It is not clear to me that this is so; complaint is made by the applicant about the length of the aggregate sentence, which can in appropriate cases be established if error in fixing the indicative sentences is identified. In any event, I am not persuaded that any of the indicative sentences are so high as to suggest that, by virtue of that fact, the aggregate sentence is manifestly excessive. 14. If it is to be assumed that no error is disclosed in the indicative sentences (as I understand both Hoeben CJ at CL and Latham J to have concluded), then the question is whether the degree of notional accumulation and concurrence in the fixing of an aggregate sentence of 16 years' imprisonment, with a non-parole period of 12 years, suggests any misapplication of principle. The indicative sentences amount to 76 years' imprisonment in total. 15. This Court is not in a position to analyse issues of concurrence and accumulation in aggregate sentences in the same way as in traditional sentencing structures, in which a number of different cascading sentences are imposed: see JM v R at [39](13). Despite this, as Latham J has explained at [248], even if one were to assume no accumulation of sentences for the offences committed within each of the four episodes, no misapplication of the totality principle is readily apparent in the aggregate sentence, having regard to the degree of concurrence reflected in the indicative sentences for the four separate incidents. 16. The appellant relied upon the fact that sexual offending against children usually involves conduct that spans many years, rather than four incidents over a three-week period. It is this aspect of the appellant's offending behaviour that has led Hoeben CJ at CL to conclude that this ground should be allowed. His Honour was satisfied that insufficient regard was had to the fact that most of the applicant's offending occurred on one occasion, which itself occupied a relatively short period of time; that is, his Honour was concerned that the aggregate sentence in this matter did not take sufficient account of notions of concurrence. 17. I accept that child sexual assault offences frequently occur over time periods much longer than in the present case. I also accept that the objective seriousness of offending behaviour will be reduced if the offences take place over a shorter time period, but that is but one of the many factors to take into account. Each case will turn on its own facts. 18. As Hoeben CJ at CL has noted at [230], the JIRS statistics for offences against s 66C(2) before the introduction of the standard non-parole period in 2015 relate to 51 cases. Of the 46 cases that resulted in full-time imprisonment, only 2 per cent of offenders received a longer aggregate sentence than did the applicant and only 4 per cent of offenders received a higher sentence for a single count than the indicatives sentences imposed by his Honour in respect of Counts 7, 8, 10, 11 and 12. 19. This Court has repeatedly identified the limitations inherent in reliance on bare statistics. However, they remain a relevant "yardstick". As Simpson J (as her Honour then was) observed in Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 (at 71 [304]): 20. "…the ranges of sentences actually imposed, while illuminating, are no more than historical statements of what has happened in the past. They can, and should, provide guidance to sentencing judges, and to appellate courts, and stand as a yardstick against which to examine a proposed sentence. But it is only by examination of the whole of the circumstances that have given rise to the sentence that "unifying principles" may be discerned: Wong and Leung, at [59]." 21. I have given careful consideration to whether these statistics lend support to the applicant's contention that his sentence is plainly unjust or unreasonable. It seems to me that there is a particular difficulty in reliance upon statistics for child sexual assault offences in determining a ground of manifest excess. Examination of the decisions of this Court discloses that it is common for persons to be convicted of various offences under different provisions of the Crimes Act. Those provisions have been amended from time to time. The offences charged must reflect the different ages of the child at various times in cases where the conduct takes place over many years. For example, an offender could be charged with any variety of offences under ss 61J, 66A, 66C, 61M, 61L or 66EA of the Crimes Act. Having regard to the principle of totality, it is difficult to reflect the results of such a sentence in the relevant JIRS statistics, which are confined to the "principal offence" for which a person has been sentenced. 22. Although I accept that each of the indicative sentences of 10 years for the s 66C(2) offences is at the high end having regard to the statistics, I am not satisfied that this fact in itself suggests error. 23. In circumstances where the statistics are of little assistance, I have endeavoured to identify other decisions of this Court dealing with offences contrary to s 66C(2) that might further assist in the determination of this ground of appeal. Again, there are obvious limitations to such an approach. Simpson JA conveniently summarised the relevant principles in R v Nakash at [9]-[10] as follows: 24. "There is no doubt that consistency is an important goal in sentencing practice, both at first instance and on appeal: Wong v The Queen; Leung v The Queen (2001) 207 CLR 584; [2001] HCA 64 at [6]-[7]; Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45; Barbaro v The Queen; Zirilli v The Queen. The consistency that is sought is not numerical equivalence but consistency in the application of principle: Hili at [48]; The Queen v Pham (2015) 256 CLR 550; [2015] HCA 39. 25. No sentence is imposed, and no appeal determined, in a vacuum. Consistency is to be achieved by sentencing judges and appeal courts having regard to what has been done in other cases as illustrating (but not defining) the possible range of sentences available, although that is an exercise that requires caution: Wong at [59]; Hili at [53]; Pham at [29]. The principle of consistency requires that like cases be treated alike; different cases be treated differently: Wong at [6]; Pham at [28]. The effect of previous sentencing decisions should not be overstated." 26. The decisions concerning s 66C(2) of the Crimes Act reflect the fact that there are considerable differences as between the circumstances surrounding the sexual intercourse, the type of sexual intercourse, the age of the complainant, and the nature of the relationship between the complainant and the offender. The applicant acknowledged in his written submissions that the pool of comparable cases is small. In support of the ground of manifest excess, he relied upon the decisions in R v PGM [2008] NSWCCA 172 and BIP v R [2011] NSWCCA 224. As Hoeben CJ at CL has observed at [232], those two cases were of only limited use in assessing whether the sentence in this case was unreasonable or plainly unjust. 27. Whilst I acknowledge the limitations in seeking to rely on other decisions of this Court to determine this ground, I propose to refer to three decisions that have been of some limited assistance. 28. The recent decision of this Court in Chamseddine v R [2017] NSWCCA 176 is relevant to the question of the time period over which the offences were committed. The applicant in that matter was convicted of six offences: four counts contrary to s 66C(2) of the Crimes Act and two counts of indecent assault contrary to s 61M(2). He received an aggregate sentence of 15 years' imprisonment with a non-parole period of ten years. He appealed against his sentence to the Court of Criminal Appeal (Hoeben CJ at CL, Walton and R A Hulme JJ), which determined of its own motion that the sentencing judge had erred in respect of accumulation. In accordance with the principles in Kentwell v R (2014) 252 CLR 601; [2014] HCA 37, he was re-sentenced to imprisonment for 12 years, with a non-parole period of eight years. 29. The applicant was a taxi driver who would regularly drive a disabled 11-year-old girl to and from school each day. He was aged 60 at the relevant time. Like the offending in this matter, the offences occurred on at least four occasions over a three-week period in 2009. Each of the four counts contrary to s 66C(2) involved digital penetration of the complainant's vagina. The counts contrary to s 61M(2) involved the applicant manipulating the complainant's hand onto his crotch and touching the complainant's breast outside her clothes. Walton J noted (at [52]) that the circumstances of the offences led to a conclusion that they were "very serious". His Honour noted that the complainant was abused on four separate occasions. Although the assaults were of a relatively short duration, that did not reduce their objective seriousness. The complainant was clearly scared, even in the absence of explicit threats. There was a significant age difference between the complainant and the applicant. 30. His Honour found (at [54]) that the offences involved premeditation and planning, including taking the complainant to a remote location. The vulnerability of the complainant, who had both hearing and speech impediments, was an aggravating factor. The applicant had no previous convictions, had benefitted from a number of character references and had significant health problems. 31. This Court did not proceed to make any finding in Chamseddine v R as to whether the aggregate sentence of 15 years' imprisonment initially imposed was manifestly excessive. Rather, the Court re-resentenced the applicant following the identification of specific error. The application of principle derived from Chamseddine v R relevant to the present case is that a relatively short duration of offending conduct does not mean that its objective seriousness is necessarily reduced when regard is had to other aspects of the offending behaviour. 32. The second decision of some assistance is AK v R [2016] NSWCCA 238. The appellant in that matter pleaded guilty to three counts: two counts of indecent assault contrary to s 61M(2) on two children, "Helen" and "Kylie", and one count of aggravated sexual intercourse with Helen contrary to s 66C(2). Another count contrary to s 66C(2) (penile/anal intercourse) was placed on a Form 1. The applicant was in a relationship with the mother of Helen, who was nine or ten at the time of the indecent assault on her. The facts in support of the indecent assault against Helen were that the applicant pulled her into the shower with him and touched her "vagina" with his hands when her mother was at work. The facts in support of the s 66C(2) count were that, when Helen was ten years old and her mother was again at work, the applicant carried her into the main bedroom and had penile-vaginal intercourse with her. He also penetrated her anally with his penis on that occasion, but that conduct was the subject of a charge on the Form 1. A report of a psychologist confirmed that Helen had severe expressive and receptive language delay and verbal skills in the lower range of borderline intellectual disability. The third count was an indecent assault on one of Helen's relatives and involved the applicant standing naked in the doorway to the child's room, who was aged either ten or 11, and later placing his hand on her "vagina" when they were sitting on the lounge together. 33. For the two indecent assault offences, the applicant was sentenced, respectively, to imprisonment for two years with a non-parole period of one year and imprisonment for three years with a non-parole period of two years. For the offence contrary to s 66C(2), the applicant was sentenced to imprisonment for ten years and eight months, with a non-parole period of seven years and six months. A discount of 10% was allowed to take into account the utilitarian value of the applicant's late pleas of guilty. The total effective head sentence comprised a non-parole period of eight years and a balance of term of three years, three months and two weeks. The undiscounted head sentence was thus approximately 12 years and three months. 34. Although this Court (Beazley P, Johnson and Harrison JJ) found error in the sentencing judge's approach to uncharged acts, in the exercise of the sentencing discretion afresh it determined that no lesser sentence was warranted. Johnson J (with whom Beazley P and Harrison J agreed) found (at [114]) that the offences were serious examples of offending of this type. His Honour observed that the applicant took advantage of the absence of other adults in the house to sexually abuse Helen and Kylie. There was evidence of uncharged acts of sexual misconduct towards Helen in that matter that meant that the applicant was not able to be afforded the degree of leniency to which he might have been entitled had the offending been isolated. His Honour also noted that the inclusion of a very serious offence on a Form 1 required the Court to give greater weight to specific deterrence and retribution in sentencing for the s 66C(2) offence. 35. Finally, I have also considered the decision of this Court in WC v R [2016] NSWCCA 173. Although it was not of any particular assistance in determining this ground of appeal, I make reference to it in order to illustrate that the need for consistency in sentencing is not directed at numerical equivalence but, rather, at consistency in the application of principle. It also illustrates the difficulty in seeking to identify "comparable" cases of child sexual assault in circumstances where the relevant maximum penalties change over time. In that matter, the applicant pleaded guilty to eight counts of sexual intercourse with a child between 10 and 16 years of age and under his authority, contrary to s 66C(2) of the Crimes Act, committed on various dates between 2000 and 2003. Although that offending conduct concluded only four years before the offences in the present case, the offences occurred prior to the doubling of the maximum penalty for s 66C(2) offences in 2003. The applicant in that case also pleaded guilty to a number of other counts including three counts of incest contrary to s 78A of the Crimes Act. A further nine offences were included on four separate Forms 1, including one count of assault occasioning actual bodily harm contrary to s 59 of the Crimes Act and various other offences contrary to, inter alia, s 66C(2). 36. The sexual abuse in that matter had continued over many years and involved an escalating series of sexual acts against the applicant's natural daughter under the guise of "educating" her about sexual matters. This began with kissing and masturbation and soon progressed to the applicant demanding oral sex, penetrating his daughter's vagina digitally, penetrating her vagina with his penis and penetrating her anus with his penis, causing her immediate and ongoing pain. These acts of abuse were explained to the victim as a way of educating her about sex and as a way of him showing his love for her. 37. Error was established in WC v R regarding the application of the principle of totality. On re-sentence, this Court imposed sentences that amounted to an effective head sentence of imprisonment for 17 years, comprising a non-parole period of 11 years and nine months with an additional term of five years and three months. That sentence commenced after the applicant had served two years of a sentence for offences in Queensland involving the same complainant. His total term of imprisonment was 19 years. 38. If one were to focus on numerical equivalence as between WC v R and the present case, it would seem that the offending behaviour in WC v R was significantly worse such that the sentences should be markedly different. Despite this, on closer examination it can be seen that the sentence in WC v R was imposed following an early plea of guilty, as opposed to the present case where there was no discount for any plea of guilty and no remorse shown. Furthermore, the maximum penalties in WC v R were between eight and 12 years' imprisonment, as opposed to the maximum penalty of 20 years' imprisonment for most of the offences in the present matter. 39. Although I have not been able to identify any truly comparable cases, the relevant principles derived from the decisions of this Court concerning s 66C(2) of the Crimes Act show that sexual assaults on children committed by persons in authority, where the sentence is not reduced by any plea of guilty, and even when the offender is of prior good character, will generally attract high sentences. 40. I have had regard to the fact that the applicant came before the Court for sentence as a person of good character. Nonetheless, it has been held that good character is of less weight in offences such as these: R v PGM (2008) NSWCCA 172 at [42] – [44]. Given that he had no previous history of sexual offending, that the offending took place within a relatively short period of time, and that he was acquitted in relation to counts 13 and 14, the trial judge accepted, albeit on a guarded basis, that the appellant is at a low risk of reoffending. The basis for this conclusion being guarded was his denial of the offences and lack of remorse. All of these factors were relevant for the sentencing judge to consider when applying a process of instinctive synthesis to arrive at the sentence to be imposed. They do not suggest that any significant reduction in the otherwise appropriate sentence was required. 41. As Button J (with whom McClellan CJ at CL and Bellew J agreed) observed in Magnuson v R [2013] NSWCCA 50 at [115], decisions of this Court show that sentences for offences against children have increased over the past decades. His Honour went on to observe at [129] that judicial memory is also to the effect that sentences have increased for serious sexual offences over the past quarter century, in some cases markedly. Those comments were made in reference to offending in the 1970s and 1980s. The present offences occurred in 2007 and thus are not "historical" in the sense described in that decision. The fact remains that as the statutory maximum penalties have increased and standard non-parole periods been introduced for some child sexual assault offences, the sentences imposed have inevitably increased as well. 42. In conclusion, having regard to the full panoply of relevant sentencing considerations in this matter, I am not satisfied that the sentence imposed on the appellant is unreasonable or plainly unjust. As the authorities make clear, it is not to the point whether I would have imposed a lesser sentence but, rather, whether a substantial wrong has occurred in this matter. Although the sentence is a high one, I am respectfully unable to agree with Hoeben CJ at CL that the sentence imposed falls so far outside the sentencing discretion that it warrants the intervention of this Court. I would grant leave to appeal against the sentence imposed but dismiss the appeal. ********** 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: 23 November 2017