Court of Criminal Appeal Supreme Court New South Wales

• Medium Neutral Citation: MJ v R [2013] NSWCCA 250
• Hearing dates: 12 August 2013
• Decision date: 08 November 2013
• Before: Macfarlan JA at [1]; Adams J at [99]; Latham J at [100]

Decision

(1) Appeal against conviction dismissed.

(2) Application for leave to appeal against sentence dismissed.

• Catchwords: CRIMINAL LAW - sexual offences - validity of indictment - statutory provisions changed during period covered by indictment - not known when during the period the offences were committed - whether appellant charged with offences known to law - whether indictment bad for duplicity; CRIMINAL LAW - sexual offences - judge alone trial - context evidence - whether complainant's errors and inconsistencies in versions of events should have led to rejection of her evidence; CRIMINAL LAW - sentencing - sexual offences - application of Di Simoni 147 CLR 383 principle
• Legislation Cited: Crimes Act 1900; Crimes Act 1914 (Cth); Crimes (Amendment) Act 1989; Crimes (Sentencing Procedure) Act 1999; Criminal Appeal Act 1912; Criminal Appeal Rules; Criminal Code (Qld); Criminal Procedure Act 1986; Evidence Act 1995; Justices Act 1902; Police Regulations Act 1899; Supreme Court Rules
• Cases Cited: AB v R [2013] NSWCCA 160; Arnaout v The Queen [2008] NSWCCA 278; 191 A Crim R 149; Baini v The Queen [2012] HCA 59; 246 CLR 469; Douglass v R [2012] HCA 34; 86 ALJR 1086; Fox v Percy [2003] HCA 22; 214 CLR 118; John L Pty Ltd v Attorney General (NSW) [1987] HCA 42; 163 CLR 508; Kailis v R [1999] WASCA 29; 21 WAR 100; Kuhl v Zurich Financial Services Australia Ltd [2011] HCA 11; 243 CLR 361; Lodhi v R [2006] NSWCCA 121; 199 FLR 303; MWJ v R [2005] HCA 74; 80 ALJR 329; McMahon v R [2011] NSWCCA 147; Question of Law Reserved (No 2 of 1996) (1996) 88 A Crim R 417; R v D, WD [2013] SASCFC 32; 116 SASR 99; R v Di Simoni [1981] 147 CLR 383; R v Greenaway [2000] NSWCCA 368; 118 A Crim R 299; R v Loewenthal; ex parte Blacklock [1974] HCA 36; 131 CLR 338; R v MAJW [2007] NSWCCA 145; 171 A Crim R 407; R v Page (Court of Criminal Appeal, 25 November 1991 unreported); SKA v The Queen [2011] HCA 13; 243 CLR 400; Wehbee v Voulgarakis (Supreme Court of New South Wales, 22 October 1991, unreported; (1991) 9 Petty Sessions Review 4363); Weiss v The Queen [2005] HCA 81; 224 CLR 300
• Category: Principal judgment
• Parties: MJ (Appellant); Regina (Respondent)
• Representation: Counsel: H Dhanji SC (Appellant); M Cinque (Respondent); Solicitors: Chalmers Law (Appellant); Solicitor for Public Prosecutions (Respondent)
• File Number(s): 2012/13589

Decision under appeal

• Jurisdiction: 9101
• Citation: R v MJ
• Date of Decision: 2013-03-08 00:00:00
• Before: Solomon DCJ
• File Number(s): 2012/13589

Judgment

1 MACFARLAN JA: In 2012 the appellant was tried before Solomon DCJ, sitting in a judge alone trial, on eight counts of aggravated indecent assault and four counts of sexual intercourse with a child between the ages of 10 and 16. The alleged victim in each instance was the appellant's natural daughter, CD. There were six separate episodes of alleged offending.

2 By judgment of 14 December 2012, the trial judge convicted the appellant on all counts, save count 5. His Honour subsequently sentenced him to an aggregate term of imprisonment of 12 years, comprising a non-parole period of 6 years and a balance of term of 6 years.

3 The periods of time covered by the counts commenced on 1 December 1989, when CD was 11, and concluded on 31 December 1995, when she was 17.

4 It is sufficient for the purpose of addressing the appellant's grounds of appeal to set out the following counts in the Indictment:

"2. Between 19 October 1990 and 30 April 1991 at Kenthurst in the State of New South Wales [the appellant] did assault CD and at the time of such assault committed an act of indecency upon CD a child then under the age of 16 years, namely 12 years, as well as being a person under the authority of MJ.

Section 61E(1A) Crimes Act 1900 (NSW)

Law Part Code: 263

3. Between 19 October 1990 and 30 April 1991 at Kenthurst in the State of New South Wales [the appellant] had sexual intercourse with CD a child then above the age of 10 years but under the age of 16 years, namely 12 years, as well as being a person under the authority of MJ.

Section 66C(2) Crimes Act 1900 (NSW)

Law Part Code: 329

4. Between 19 October 1990 and 30 April 1991 at Kenthurst in the State of New South Wales [the appellant] had sexual intercourse with CD a child then above the age of 10 years but under the age of 16 years, namely 12 years, as well as being a person under the authority of MJ.

Section 66C(2) Crimes Act 1900 (NSW)

Law Part Code: 329

...

6. Between 19 October 1990 and 30 April 1991 at Kenthurst in the State of New South Wales [the appellant] did assault CD and at the time of such assault committed an act of indecency upon CD a child then under the age of 16 years, namely 12 years, as well as being a person under the authority of MJ.

Section 61E(1A) Crimes Act 1900 (NSW)

Law Part Code: 263

...

8. Between 19 October 1990 and 30 April 1991 at Kenthurst in the State of New South Wales [the appellant] did assault CD and at the time of such assault committed an act of indecency upon CD a child then under the age of 16 years, namely 12 years, as well as being a person under the authority of MJ.

Section 61E(1A) Crimes Act 1900 (NSW)

Law Part Code: 263".

THE EVIDENCE AT THE TRIAL

The complainant's evidence

5 CD gave evidence that the first charged sexual assault by her father occurred when the complainant was living with her mother, father and siblings at a property in Kenthurst, New South Wales. The conduct charged in Counts 1 to 8 inclusive occurred prior to CD, her mother and siblings moving to a property in Riverstone, New South Wales. Before that move, the marriage of CD's mother and the appellant deteriorated and, apparently for work reasons, the appellant moved to Melbourne. CD said that the conduct alleged in Counts 9, 10 and 11 occurred when the appellant visited the Riverstone property.

6 She said that the conduct alleged in Count 12, which involved the appellant fondling her breasts over her shirt, occurred after she had moved with her family to Cherrybrook in Sydney and when she was in Year 11 at school.

Complaint evidence

7 CD's general practitioner (Dr Daniella Florida), mother and closest friend gave evidence that in 1994 or 1995 CD asserted to them that she had been sexually abused by her father. CD explained the absence of earlier complaint by her fear of her father.

8 Ms Frances Huber, a registered psychologist, gave evidence that CD had complained to her in 2010 that her father had sexually abused her when she was between the ages of 8 and 16.

The horsewhip evidence

9 CD gave evidence that the appellant disciplined her with a horsewhip and threatened to use it on her if she did not comply with his sexual demands.

10 CD's mother, brother and youngest sister each gave evidence that the appellant had used the horsewhip to discipline CD.

Context evidence

11 CD gave context evidence of various sexual assaults on her by her father which were not the subject of charges in the Indictment. This included evidence of incidents which occurred when the appellant took his children to the Gold Coast in 1994 and when CD came to visit him in Melbourne in 1994, as well as evidence of prior abuse when the family lived in Warrandyte in Melbourne, before moving to Kenthurst.

The appellant's case

12 The appellant gave evidence denying the sexual conduct of which CD gave evidence. He had similarly denied it in an electronically recorded interview with the police in January 2012. He claimed that he had a fairly good relationship with CD.

13 In the police interview, he asserted that what he regarded as the lies CD told were attributable to her being upset about the break up of her parents' marriage and to a withholding by him of money for driving lessons for CD.

14 In his police interview, the appellant also denied ever using a horsewhip to discipline his children but in his oral evidence at the trial, whilst saying that he did not recall using the horsewhip, he accepted that he probably did.

15 The appellant's present wife also gave evidence in the defence case. She said that her relationship with the appellant had commenced in 1995 and that their engagement had been announced to his children at a restaurant dinner later that year. She said that the occasion had been a happy one and that CD had responded happily to the announcement. She said that CD had never made a complaint to her about her relationship with the appellant.

THE JUDGMENT AT FIRST INSTANCE

16 In his decision of 14 December 2012, the trial judge carefully examined the evidence that had been called and the submissions that had been made in the nine days over which the trial was conducted. As well, he noted various directions that he gave himself to guide his determination of the proceedings.

17 His Honour found that there were some respects in which CD had given incorrect evidence and that there were some inconsistencies between a statement given by her to the police and the evidence that she gave in Court.

18 First, his Honour found that CD had given incorrect evidence regarding the time and place of the appellant first sexually assaulting her. This conduct was not the subject of any charges, presumably because it allegedly occurred at Warrandyte in Victoria. His Honour found that the incorrectness of the evidence was relevant to CD's credit, but only to a minor degree.

19 Secondly, his Honour found that CD had given incorrect evidence regarding the duration of her trip to Melbourne and the accused going to work each day during her stay. Again he found that this affected CD's credit but only to a minor degree.

20 Thirdly, his Honour concluded that CD's credibility was not adversely affected by differences between her police statement and her evidence in Court.

21 Fourthly, his Honour rejected the appellant's counsel's submission that CD gave incorrect evidence concerning the trip with her father and siblings to the Gold Coast. He did not consider that her evidence that the holiday unit in which the family stayed contained three bedrooms was incorrect. This was of significance in relation to the appellant's opportunity to commit the sexual assaults that CD alleged were committed there. This finding is the subject of the appellant's fourth ground of appeal, which I address later in this judgment.

22 The trial judge's conclusions concerning the complainant's credibility were as follows:

"I now turn to my overall assessment of the complainant's evidence in the case. I have scrutinised her evidence with great care and have had regard to all the evidence in the case. I have had regard to the manner in which she gave her evidence. The complainant's cross-examination made significant concessions regarding her behaviour during her mid teen years. I was most impressed with the way in which the complainant gave her evidence both in chief and in cross-examination. The complainant's evidence regarding the alleged sexual abuse, being the subject of the charges, has the ring of truth to it, and overall the narrative contained in the complainant's evidence was, to my mind, cogent and believable.

I find the complainant to be a witness of truth as to the essential parts of her evidence, despite her giving incorrect evidence regarding the place and date of the early alleged sexual abuse perpetrated upon her, details regarding the Melbourne trip, and omissions and admissions between the police statement and her evidence. All in all I find the complainant to be a reliable witness".

23 The trial judge then considered the evidence concerning the appellant's use of a horsewhip to discipline CD. Having noted that the appellant's denial in his police interview of this conduct was in conflict with the evidence of CD, her mother, her brother and youngest sister, his Honour said:

"The accused in his evidence indicated that he was confused when he gave the answer in the ERISP regarding the horse whip. I do not accept the accused's evidence about him being confused. The accused during the ERISP did not appear to be confused in relation to any of the questions given to him. The accused in the ERISP was able to provide dates and times going back many many years. The accused appeared to answer all questions in the ERISP confidently, including the questions regarding the horse whip. I find the accused told police a deliberate lie when he said, 'I never used a horse whip on a child in my life. I wouldn't use a horse whip.'

I do not accept the accused's evidence given in the trial that he could not recall using a horse whip on his children. I come to this view using my commonsense, it being that no-one would not remember using a horse whip on a child".

24 His Honour's ultimate conclusions were as follows:

"Like the complainant, I found the accused to give his evidence in a clear, lucid and open manner. I found the accused who was skilfully cross-examined by the Crown Prosecutor maintained during his cross-examination his clear, lucid and open manner in answering questions. I find the accused in his cross-examination did not prevaricate in answering questions, nor did he attempt to avoid answering questions. The accused presented as an impressive witness in the witness box. However in considering the accused's evidence I have regard to the answer which I found to be a deliberate lie in the ERISP regarding the horse whip.

As I indicated I find the answer regarding the horse whip to be a deliberate lie. As a consequence of my finding my assessment of the accused's credit is adversely affected and I have doubts about his reliability as a witness. I direct myself in finding a doubt about the accused's reliability that that has not in any way enhanced my assessment of the reliability of the complainant's evidence.

In coming to my verdicts I have weighed up and considered all the evidence in the case and indicate that if I had not found the accused to have told the deliberate lie I would still have found the complainant to be a witness of truth. I found her evidence to be compelling and to have had the ring of truth about it concerning the allegations of sexual misconduct by the accused. I still would have found the complainant to be a reliable witness".

GROUNDS 1 AND 2: COUNTS 2, 6 AND 8 IN THE INDICTMENT FAILED TO ALLEGE AN OFFENCE KNOWN TO THE LAW OR ALTERNATIVELY ARE BAD FOR DUPLICITY

25 These grounds arise out of legislative changes that occurred in the period, 19 October 1990 to 30 April 1991, to which these counts relate. The counts use the language of s 61E(1A) of the Crimes Act 1900. This section is referred to in each count immediately after the statement of the factual elements of the offences charged.

26 Section 61E (together with other sections) was repealed by the Crimes (Amendment) Act 1989 which was operative from 17 March 1991. That amending Act also, inter alia, enacted s 61M which provided for an offence of aggravated indecent assault, as well as s 61L which provided for a basic offence of indecent assault.

27 On appeal, it was common ground between the parties that, as is often the case in trials for sexual offences, the evidence did not prove when, in the period to which the counts related, the offences charged were committed, with the consequence that it did not demonstrate whether those offences were committed before or after the legislative changes effective from 17 March 1991.

28 The appellant accepted that the words of each count were sufficient to allege an offence against either s 61E(1A) or s 61M but contended that the counts did not allege an offence known to law (because neither of the statutory provisions covered the whole of the period referred to in the counts) or, alternatively, were bad for duplicity (because two different offences were alleged within the one count). The appellant also submitted that the findings of guilty were uncertain, and should be quashed, because it cannot be determined, from examination of the Indictment and the findings of the trial judge, of which offences the appellant was found guilty.

29 The Crown's response was that the conduct of the appellant charged in the relevant counts was unlawful at all times in the period referred to (until 17 March 1991 under s 61E(1A) and thereafter under s 61M, as well as s 61L) and the fact that the source of the unlawfulness changed did not invalidate the appellant's convictions. For the reasons that appear below, I consider that the Crown's contentions are correct and that Grounds of Appeal 1 and 2 should be rejected. In my view, the decision of this Court in R v MAJW [2007] NSWCCA 145; 171 A Crim R 407 requires that conclusion and must be followed. In any event, the reasoning in MAJW is to be preferred to that in the decision upon which the appellant principally relied, Kailis v R [1999] WASCA 29; 21 WAR 100 (reported as K v R in 107 A Crim R 195).

30 The statutory provisions to which I have referred are as follows:

"61E Sexual assault category 4-indecent assault and act of indecency

...

(1A) Any person who assaults another person who:

(a) is under the age of 16 years, and

(b) is (whether generally or at the time of the assault only) under the authority of the person,

and, at the time of, or immediately before or after, the assault, commits an act of indecency upon or in the presence of the other person, shall be liable to penal servitude for 6 years.

...

61L Indecent assault

Any person who assaults another person and, at the time of, or immediately before or after, the assault, commits an act of indecency on or in the presence of the other person, is liable to imprisonment for 5 years.

61M Aggravated indecent assault

(1) Any person who assaults another person in circumstances of aggravation, and, at the time of, or immediately before or after, the assault, commits an act of indecency on or in the presence of the other person, is liable to imprisonment for 7 years.

(2) Any person who assaults another person, and, at the time of, or immediately before or after, the assault, commits an act of indecency on or in the presence of the other person, is liable to imprisonment for 10 years, if the other person is under the age of 10 years.

(3) In this section, circumstances of aggravation means circumstances in which:

(a) the alleged offender is in the company of another person or persons, or

(b) the alleged victim is under the age of 16 years, or

(c) the alleged victim is (whether generally or at the time of the commission of the offence) under the authority of the alleged offender, or

(d) the alleged victim has a serious physical disability, or

(e) the alleged victim has an intellectual disability."

31 In MAJW, the trial judge referred to this Court questions of law which included the following:

"Counts 11 and 12 on the indictment alleged that, between 26 January 2003 and 25 December 2003, the respondent had sexual intercourse with the victim, a person above the age of 10 years and under the age of 14 years, namely 12 years, in circumstances of aggravation, namely that the victim was under the authority of the respondent.

On 16 November 2006, the jury returned verdicts of guilty in respect of 14 of the 15 counts on the indictment, including counts 9-12.

Section 66C of the Crimes Act 1900 [sexual intercourse - child between 10 and 16] was inserted in the Act in 1985.

Since 13 June 2003 s 66C (2) of the Crimes Act 1900 provides:

Any person who has sexual intercourse with another person who is of or above the age of 10 years and under the age of 14 years in circumstances of aggravation is liable to imprisonment for 20 years.

Prior to 13 June 2003 s 66C (2) provided:

Any person who has sexual intercourse with another person who -

(a) is of or above the age of 10 years, and under the age of 16 years; and

(b) is (whether generally or at the time of the sexual intercourse only) under the authority of the person,

shall be liable to imprisonment for 10 years."

32 Section 66C(5), which was operative from 13 June 2003, defined "circumstances of aggravation" to include the alleged victim being "under the authority of the alleged offender".

33 James J (with whom Rothman and Harrison JJ agreed) concluded in relation to an argument analogous to that put in the present case:

"27 With regard to counts 11 and 12, it is true that the extended period alleged in each count straddles two periods in which there were different maximum penalties. However, in such a case, if the Crown is unable to establish that the offence was committed during the period in which the higher maximum penalty applied, the offender must be sentenced on the basis of the lower maximum penalty. Difficulties could arise in a case where the Crown charges an aggravated offence, if the circumstance relied on by the Crown was a circumstance of aggravation in one period but not in the other, but such a difficulty does not arise, and need not be addressed, in the present case."

34 This conclusion is applicable to the present case because in that case, as here, whilst the factual matters alleged would, if proved, have constituted offences under both legislative provisions, the provisions were differently framed and specified a different penalty.

35 In MAJW, the earlier version of s 66C(2) referred to persons under the age of 16 years whereas the later referred to persons under 14 years. Further, the earlier version contained the element of authority within it whereas the later version was structured differently in referring to "circumstances of aggravation" and requiring reference to another subsection for the definition of that expression. That definition referred not only to the victim being under the authority of the alleged offender but to other circumstances of aggravation, none of which were referred to in the earlier version of s 66C(2).

36 James J did not consider these differences to be of significance. The qualification he stated concerning circumstances of aggravation is not applicable in the present case (nor was it in that case) as the aggravating feature (the victim being under the authority of the alleged offender) was provided for in both statutory provisions.

37 In MAJW Rothman J made additional observations including the following:

"55 Ultimately whether it is permissible to charge an offence of this kind in these circumstances must be answered on the basis of two fundamental concerns. The first of them is that the defendant is entitled to be treated fairly and to have a fair hearing. In other words, the defendant must know precisely the facts that are sought to be proven against him and how, if at all, those facts may be met. In the present proceedings, this is easily done. The elements of each offence, as particularised in the indictment, are identical. The only distinction is the sentence that is capable of being imposed. Where the finding of guilt does not allow a discrimination as to which of the two offences apply, the lesser sentence is applicable.

...

61 ... There is no unfairness in giving effect to the clear purpose of the legislature that a person charged (and convicted) of sexual intercourse with a person of 14 years of age during a period that spanned 13 June 2003, in circumstances of aggravation, may be convicted of an offence under section 66C of the Crimes Act, the penalty for which must, in the present circumstances, be the lower of the offence available before and after 13 June 2003."

38 There was similarly no unfairness to the appellant in the present case. The essential factual ingredients of the charges against the appellant were stated in the Indictment (see John L Pty Ltd v Attorney General (NSW) [1987] HCA 42; 163 CLR 508 at 519 - 20) and he does not complain that he was misled by the manner in which he was tried. Whilst under s 61M, the age of the victim and the alleged offender's position of authority are two of a number of possible circumstances of aggravation, those matters were necessary elements of an offence under s 61E(1A). Proof of the elements of an offence under s 61E(1A) therefore established that circumstances of aggravation as defined in s 61M existed.

39 It was not essential to the validity of the relevant counts of the Indictment that the statutory provision that rendered the appellant's conduct unlawful be identified, although identification for an accused of a statutory provision or provisions on which the Crown relies may be required as a matter of particulars, to ensure that the accused can adequately prepare for his trial (as to which see Lodhi v R [2006] NSWCCA 121; 199 FLR 303 at [104]).

40 In R v Loewenthal; ex parte Blacklock [1974] HCA 36; 131 CLR 338, an accused was charged with having wilfully and unlawfully destroyed property. The Indictment did not state that the charge was laid under s 469 of the Criminal Code (Qld) but that section was noted in the margin beside the allegation of the factual elements of the offence. On demurrer, the accused contended that the section was inconsistent with s 29 of the Crimes Act 1914 (Cth) and was accordingly invalidated by s 109 of the Constitution. The High Court upheld this argument but nevertheless held that the District Court had jurisdiction to proceed on the Indictment upon the basis, as identified by Mason J (with whom Barwick CJ agreed), that the language in which the Indictment was expressed was equally apt to allege an offence under s 29 of the Crimes Act as well as an offence under s 469 of the Criminal Code (at 344) and:

"There is therefore no reason why the indictment should have been regarded on its face as alleging an offence against State law only and why it should not have been read as alleging an offence against Commonwealth law" (at 345).

41 Likewise in the present case, the terms in which Counts 2, 6 and 8 of the Indictment were stated were equally apt to charge offences under the former s 61E(1A) and the later enacted s 61M. No question of duplicity arises because there is no overlap in the periods for which the sections operated. Thus the counts did not charge that the conduct was an offence under both sections at the same time and therefore alleged two offences in a single count.

42 Part 75 r 3D(1) of the Supreme Court Rules 1970, provides that an indictment may be in the form prescribed which includes reference to the statutory provision, if any, under which a charge is brought. Rule 3D(2A) requires an indictment to specify the Law Part Code, if any, for each offence alleged in the indictment to have been committed. However r 3D(2) provides that non-compliance with sub-rules 1 or 2A does not render an indictment bad or insufficient. These provisions would justify an approach being taken in the present case similar to that taken by Studdert J in Wehbee v Voulgarakis (Supreme Court of New South Wales 22 October 1991, unreported, (1991) 9 Petty Sessions Review 4363) where his Honour found a Local Court information to be valid in accordance with the now repealed Justices Act 1902 where it alleged an offence under the Police Regulations Act 1899 which had been repealed but replaced by later legislation in relevantly the same terms.

43 The inessentiality of identification in an indictment of the source of unlawfulness of the offence alleged is reflected in the terms of s 7(2) of the Criminal Appeal Act 1912 which allows this Court to find an appellant guilty of an offence of which he or she has not in terms been charged if it appears to the Court from the jury's verdict that it must have been satisfied of facts that proved the appellant guilty of that other offence.

44 I turn now to other authorities that the parties cited in argument.

45 In R v Page (Court of Criminal Appeal, 25 November 1991, unreported), Campbell J (with whom Gleeson CJ and Mahoney JA agreed) said, in considering the possibility of this Court exercising its powers under s 7(2) of the Criminal Appeal Act, that it was not possible to be satisfied beyond reasonable doubt that the offences which were the subject of convictions that were set aside had occurred at a time during the charged period when new statutory provisions had come into force. This was important in that case, unlike the position in the present case, because the same elements did not appear in the new provisions, in the case of one count because the new provision contained an age range and in the case of the others because consent was potentially relevant under the new provision. Hence the verdicts of guilty (there of a jury) did not establish that all the elements of the new offences had been established.

46 In Kailis v R, the position was similar to the present: a statutory provision was amended in the period of time charged on the indictment. Malcolm CJ (with whom Ipp and Anderson JJ agreed) held that an offence under the new statutory provision was "technically, a different offence" from that under the provision that it replaced "notwithstanding that the same conduct rendered an offender liable to the same punishment" (at [41]). His Honour held that the relevant counts were bad for duplicity because "two separate and distinct offences were alleged in both of [the relevant] counts" (at [42]).

47 His Honour also held that other counts, where the relevant statutory provision was repealed and replaced, were even more clearly bad for duplicity "as the offences were constituted by entirely different provisions. Notwithstanding that the basic elements of each offence remained the same, they were, nonetheless, different offences" (at [56]). His Honour further held that each of the convictions was uncertain because there was no way of determining of which of the possible offences the appellant was convicted (at [67]).

48 Ipp J's observations concerning the finding of uncertainty of the convictions included the following:

"174 ... An act or omission only renders a person liable to punishment if it is proscribed by the Code and the Code stipulates the particular penalty that a court may impose in respect thereof. As it was put by Lord Mackay LC in R v Mandair [1995] 1 AC 208 at 216: ' ... it is guilt of a contravention of the statute that gives the court power to impose punishment.' It follows that the court's power to impose a sentence for the offence charged under count (1) depended on proof either that the old or the new s 189 had been contravened. Without such proof, the court had no power to punish the appellant.

175 Accordingly, the date of the act alleged bore an essential relation to the charge: cf R v Jacobs [1993] 2 Qd R 541 at 542, per Derrington J. Without proof that the conduct alleged in count (1) occurred before the repeal of the old s 189, it could not be said that that section was contravened. A similar result follows without proof that such conduct occurred after the coming into force of the new s 189. Such proof was not forthcoming. Therefore, it is not possible to know whether the jury convicted the appellant of an offence under the new or the old s 189 and the jury's verdict is uncertain. Accordingly, the appellant was deprived of the chance of acquittal that was fairly open: see S v The Queen (1989) 168 CLR 266 at 276; KBT v The Queen (1997) 191 CLR 417 at 423, 426."

49 It follows from what I have said earlier that I respectfully disagree with the reasoning in Kailis concerning duplicity as there, like the present situation, the conduct in which the Crown alleged that the accused had engaged could not, under any one count, constitute an offence under more than one statutory provision as only one relevant provision was operative at any particular time.

50 I also disagree with the conclusion that the counts were bad for uncertainty. The jury's verdicts related to the factual circumstances alleged against the accused. The statutory provision that justified the imposition of punishment remained for identification by the sentencing judge. As indicated in MAJW, where punishment is authorised by one or other of two statutory provisions and the court cannot determine with certainty which is applicable, that which provides for the lesser punishment is to be applied.

51 The same comments are applicable to the obiter observations of Olsson J (with which Doyle CJ and Duggan J agreed) in Question of Law Reserved (No 2 of 1996) (1996) 88 A Crim R 417 at 433. These observations were to the same effect as the reasoning in Kailis.

52 In R v Greenaway [2000] NSWCCA 368; 118 A Crim R 299, the applicant sought leave to appeal against his conviction of an offence described by the Court as an offence under s 81 of the Crimes Act 1900 of indecent assault upon a male. The terms of the relevant count in the Indictment are not set out in the judgment but it appears that they must have followed the terms of s 81, which before its repeal in 1984, stated:

"Whosoever commits an indecent assault upon a male person of whatever age with or without the consent of such person, shall be liable to penal servitude for five years".

53 The applicant challenged his conviction on this count on the basis that, in the midst of the period of time in which the count alleged that the relevant conduct occurred, s 81 was replaced by s 78Q of the Crimes Act and the evidence did not establish whether the conduct alleged occurred before or after that legislative change. The subsequently repealed s 78Q provided:

"78Q Acts of gross indecency

(1) Any male person who commits, or is a party to the commission of, an act of gross indecency with a male person under the age of 18 years shall be liable to imprisonment for 2 years.

(2) Any person who solicits, procures, incites or advises any male person under the age of 18 years to commit or to be a party to the commission of an act of homosexual intercourse, or an act of gross indecency, with a male person shall be liable to imprisonment for 2 years."

54 The Crown conceded that it was not possible to say whether an offence had been committed under the repealed provision or under the new provision and that the conviction should accordingly be set aside, the Court's attention having been drawn to the decisions in Page and Kailis. The Court acted on this concession and set aside the conviction.

55 It is apparent that in that case, unlike the present, the wording of the relevant count, whilst sufficient to allege an offence under the earlier legislative provision, would not have been sufficient to allege an offence under the later one. The earlier related to "an indecent assault" upon a male person of any age, whereas the latter related to "gross indecency" with or toward a male person under the age of 18 years. Thus a verdict of guilty in relation to the count would not have indicated that the essential ingredients of the later offence were established. As I have noted earlier, the position is different in the present case as the appellant concedes that the words of each relevant count are sufficient to allege an offence under either the former provision or the later provision (written submissions [62]). For these reasons Greenaway is distinguishable from the present case.

56 In R v D, WD [2013] SASCFC 32; 116 SASR 99, the appellant was convicted of engaging in two counts of unlawful sexual intercourse at the same time in a 26 month period. The relevant statutory provision was amended during that period to relate to sexual intercourse with a person of or above the age of 14 years, as opposed to the former requirement of being of or above 12 years, and under the age of 17 years. As the allegation had been that the victim was of the age of 13 or 14 years, the verdict in a judge alone trial did not indicate that the essential ingredients stated in the amended provision had been established. As the evidence did not indicate when in the 26 month period the offence occurred, the convictions under these counts were set aside. This case is distinguishable from the present case on the same basis as Greenaway.

57 A further issue raised in R v D, WD was whether the South Australian Full Court was authorised by a local provision comparable to s 7(2) of the New South Wales Criminal Appeal Act to substitute convictions for basic offences of indecent assault in view of the setting aside of the convictions for unlawful sexual intercourse. The Court held that it was, notwithstanding that the statutory provision relating to indecent assault had been amended during the relevant period. The Court considered that it did not matter that the structure of the offence had changed from an offence with a possible circumstance of aggravation to two offences, one being a basic offence and one being an aggravated offence. It said that there had been no change to the elements of the basic offence or its maximum penalty during the whole of the relevant period. This reasoning is consistent with my reasoning in the present case.

58 For these reasons, I consider the decision in MAJW to be authoritative so far as this Court is concerned. For the reasons I have given, I do not in any event regard the reasoning in the conflicting Western Australian decision in Kailis as persuasive.

GROUND 3: THE CONDUCT ALLEGED IN COUNT 2 WAS THE SAME CONDUCT ALLEGED IN COUNT 3

59 In its opening at the trial, the Crown said that Counts 2, 3 and 4 in the Indictment were part of the one episode, Count 2 involving the touching of CD's vagina, Count 3 its digital penetration and Count 4 penile/vaginal intercourse.

60 CD's evidence in support of Counts 2 and 3 was as follows:

"Q. Did he ever touch your vagina during or before this incident [the penile/vaginal intercourse]?

A. Before.

Q. How?

A. He just rubbed - he put his fingers inside of me".

61 The trial judge found that Counts 2 and 3 had been established. The argument put by the appellant on appeal that CD's evidence did not establish two different items of conduct was not put to his Honour, nor was the topic broached in the cross-examination of CD.

62 In my view, it was clearly open to the trial judge to take the view that CD's evidence established that prior to the penile/vaginal intercourse, two separate acts occurred, one of the appellant rubbing CD in the vicinity of her vagina and the other in inserting his fingers inside her vagina. The appellant suggests that in saying "he put his fingers inside of me", CD may have been correcting the statement she had just made that "[h]e just rubbed". The transcript does not indicate this and as the point was not taken at the trial and no application was made to amend the transcript, the appellant is left without support for this proposed ground of appeal.

GROUND 4: THE TRIAL JUDGE SHOULD HAVE ACCEPTED CERTAIN EVIDENCE OF CD'S BROTHER AS IT WAS NOT CHALLENGED

63 The evidence in question is that of CD's brother that when he, his siblings and the appellant visited the Gold Coast, they stayed in the Imperial Surf Hotel. This evidence was significant because the effect of a statement of Agreed Facts tendered at the trial was that that building "has" two bedroom units only (save for one presently irrelevant exception). As noted above at [21], the number of bedrooms in the unit in which the family stayed was relevant to the appellant's opportunity to engage in the conduct which CD alleged took place there.

64 The brother was called to give evidence in the Crown's case. His relevant evidence-in-chief was as follows:

"Q. Do you remember the place you went to in Queensland?

A. Yeah, The Imperial Surf.

Q. Why do you remember the name of--

A. Sorry? Just I remember the enormous building right across the, basically walking past Club Surfers right on the beach--

Q. Okay.

A. --and I think it was also near that rocket - bungy rocket thing as well so--

Q. Do you know on what floor you went to, to stay?

A. I, I, I remember it was very high up but I, I couldn't tell you the exact floor, no.

Q. What about the size of the apartment or unit?

A. I don't remember real bedrooms [sic]. I remember the open plan living area and I remember the balcony, but that's really about all I - I couldn't tell you how many bedrooms there were or anything like that, no".

65 He mentioned the name of the apartment block again, later in his evidence-in-chief. No reference to the name of the apartment block was made in his cross-examination by the appellant's counsel but he did repeat then that he could not remember how many bedrooms were in the unit in which the family stayed.

66 In his evidence at the trial, the appellant said that when interviewed earlier by the police he had not been able to recall the name of the apartment block but had subsequently ascertained it by a Google search. He said that he was able to identify it because of its location and shape. Later, he said that there were "hundreds" of high rise apartment blocks in the vicinity of or along the The Esplanade which was the street upon which the Imperial Surf was located. The appellant does not contend that this evidence of the appellant, as distinct from that of CD's brother, should have been accepted by reason of an absence of challenge to it.

67 In re-examination, the appellant said that he had had experience with major real estate transactions and had identified the Imperial Surf by reason of its distinctive structure.

68 In the course of the Crown's final address, the following exchange occurred:

"CROWN PROSECUTOR: ... The Gold Coast incident, there was, it seems, a concession - if that's not the right word, acknowledgement might be better - as to parts of the layout of the unit being consistent with the evidence elsewhere led, including in the accused case that the unit was a two and not a three bedroom unit, which she had alleged.

HIS HONOUR: Well, she maintained her position. She said she believed it to be a three bedroom unit.

CROWN PROSECUTOR: Yes. But she acknowledged that part of some of the layout, including entrance area and so forth, appeared to recall - in other words, what was put to her in cross-examination was consistent with her recall of the layout, but she maintained that she thought it was a three bedroom unit.

HIS HONOUR: Well, I have some doubts about what unit block it was. There's no material before me apart from the judgment of the accused.

CROWN PROSECUTOR: Yes.

HIS HONOUR: I don't know whether that takes it very much further. [CD's brother] didn't remember.

CROWN PROSECUTOR: No. Although [CD's brother] does recall seeing - and this is perhaps the only evidence, although it's somewhat peripheral perhaps for your Honour - but [CD's brother] recalled seeing CD sleeping on the lounge at The Imperial Surf.

HIS HONOUR: Yes. Well, that's consistent with her evidence" (emphasis added).

69 In the course of the appellant's counsel's final address, the following exchange occurred concerning the Gold Coast apartment block:

"HIS HONOUR: Well, perhaps I could indicate to you I have to rely on the evidence of the accused in relation to the accommodation, so we can't take the accommodation as a given and--

BODOR: Well, your Honour, may I - I hear your Honour. I'll try and address it.

HIS HONOUR: If I accept the accused as a witness of truth, even then I can't be totally satisfied that the property [w]as The Imperial Surf. He's given evidence that there were scores of high-rise buildings on The Esplanade.

BODOR: Yes, I understand that, your Honour. May I trust [sic] and address it seriatim?

HIS HONOUR: Yes.

BODOR: It is an agreed fact - exhibit F, 13 to 16 - that there was such a building with such an altitude. The accused, in his ERISP, when first confronted about that - so I'll go back to the agreed facts. The inquiry as to the existence of the high-rise complex revealed that there is a Breakfree Imperial Surf. I think the accused called it The Imperial Surf. It has two bedrooms and it's only for guests, save for the penthouse on the 35th, and the complex was operating in 1994. They are the agreed facts, essentially, on the point.

HIS HONOUR: Yes.

BODOR: The accused, in his ERISP, says that he stayed at a high-rise on the 25th floor, which is important, in my submission, and he said he made arrangements for a trundle type of bed. That, in itself, has about it a ring of truth that there would need to be five beds for the five occupants, that is the three girls and the two boys. He said that the arrangement was that the girls were to sleep in one room and he and [CD's brother] in the smaller room. The essence of it was that CD was not prepared to sleep in there on his account and she slept on the sofa. The evidence in the trial was, from CD, [CD's brother] and the accused, that she slept on the sofa.

The important material in the trial, in my submission, on that contextual context is - sorry, [CD's brother] confirmed, at 399, that they were at The Imperial Surf and he told the police that--

HIS HONOUR: I don't know what he told the police. It's what he told me is what's--

BODOR: Sorry, he was cross-examined about the fact that he told the police - at 399, please, and 402 - that he was on the 25th floor.

HIS HONOUR: So he was, what, 18 at the time?

BODOR: 17 or 18. He was on his Ls; we know that.

HIS HONOUR: Yes, and we're talking about something that happened 18 years ago.

BODOR: We're talking 18 years ago, yes.

HIS HONOUR: He remembered he was staying on the 25th floor, which so happens to be the same floor that his father said he was--

BODOR: Your Honour, for a tribunal of fact there's always an inquisitive mind.

HIS HONOUR: Yes.

BODOR: There can always be an element of - and I'm not offending when I say this. There can always be an element of cynicism but, at the end of the day, in my submission, you ought not reject material--

HIS HONOUR: No, I'm not rejecting. I'm not rejecting it.

BODOR: I was going to say you ought not reject material simply because it doesn't accord with a reaction rather than other evidence. If there was evidence A and B, then you would have to choose or--

HIS HONOUR: Well, there is evidence A and B because the complainant believes, and it was said in her evidence, that - even when she was confronted with the diagram that she still believed it was a three-bedroom unit. So there is conflicting evidence.

BODOR: I'll go to that. She vacillated about it.

HIS HONOUR: No, her last answer was she believed it was a three-bedroom unit" (emphasis added).

70 Following this exchange, the appellant's counsel continued to assert that the appellant's evidence on this issue should be accepted, with the trial judge at one point saying "If it was The Imperial Surf then obviously it's just a two bedroom unit" (emphasis added).

71 The trial judge's decision included the following concerning CD's brother's evidence on this issue:

"[CD's brother] in his evidence in chief gave evidence the family stayed at the Imperial Surf Hotel in January 1994. However in cross-examination by Mr Bodor, [CD's brother] gave evidence that he told police in his statement that the family stayed in 'a hotel which was the tallest tower'. I make the comment that it is curious indeed as to how [CD's brother's] memory improved regarding the name of the building from the time of his police statement to the time he gave evidence in court and indicate that I have significant doubt about [CD's brother's] evidence regarding the family staying specifically at the Imperial Surf in 1994".

72 His Honour then referred to the appellant's evidence on the issue and indicated that he was not satisfied that CD's evidence that she believed the unit to have been three bedroom was incorrect.

73 On appeal, the appellant complains that CD's brother was not challenged on how he recalled the name of the apartment block and "it was not suggested to defence counsel or the Crown that [his] evidence as to the name of the Hotel might be rejected". However the brother was the Crown's witness and therefore not able to be questioned by the Crown as if the Crown were cross-examining him in the absence of leave to do so being granted to it under s 38 of the Evidence Act 1995. In my view it was sufficient for the Crown to ask the brother in evidence, as it did, why he remembered the name, as it was clear from the course of the trial that whether the apartment block was the Imperial Surf Hotel was in issue because a finding that it was would arguably have required the conclusion that the unit in which the family stayed had only two bedrooms (although a further point remained that the agreed fact concerning the Imperial Surf Hotel was that its units presently had two bedrooms, without any agreement or evidence as to the position in 1994). This was reflected in his Honour's observation in argument that "If it was the Imperial Surf then obviously it's just a two bedroom unit".

74 The appellant emphasises his Honour's statement in argument "no, I'm not rejecting. I'm not rejecting it" but that seems to have been said in relation to the evidence concerning the floor number rather than the building name. Moreover, it would be reading too much into the statement to construe it as an indication that the trial judge was binding himself not to reject the evidence in the course of his final judgment. The comment was simply one, in the course of what was obviously vigorous discussion between the bench and bar, indicating that the judge was not making a decision on the issue at that stage. Counsel's conduct in continuing to address on the issue supports that view, as does the judge's later statement that "If it was The Imperial Surf ... ".

75 In my view, contrary to the appellant's contention, what occurred did not constitute a failure to afford him procedural fairness. The appellant's counsel was aware from the interchanges during the addresses that the number of bedrooms in the Gold Coast apartment, and therefore the name of the block in which it was situated, remained in issue (see MWJ v R [2005] HCA 74; 80 ALJR 329 at [38]). If he perceived any unfairness in the Crown not having made an application under s 38 of the Evidence Act to question CD's brother as if in cross-examination, it was open to him to seek leave to further cross-examine the brother, but he did not do so. Nor did he suggest in address that the issues were foreclosed by the absence of any such application by the Crown.

76 The appellant further submits that the basis for the trial judge's "significant doubt" with respect to the brother's evidence (see [71] above) was not put to him or the parties. This is again answered by the fact that the name of the apartment block was in issue. The comment made by the trial judge concerning the improvement in the brother's memory between the time of his police statement and his evidence at the trial was a comment based upon the brother's evidence at the trial. It was an understandable and obvious observation pertinent to the reliability of the brother's evidence on this issue. The judge was not impugning the brother's honesty (compare Kuhl v Zurich Financial Services Australia Ltd [2011] HCA 11; 243 CLR 361 at [71] and see Douglass v R [2012] HCA 34; 86 ALJR 1086 at [15] as to the distinction between truthfulness and reliability) and nothing more was required to be put to him during his evidence.

77 For these reasons, this ground of appeal should be rejected.

GROUND 5: THE TRIAL JUDGE ERRED IN HIS TREATMENT OF THE CONTEXT EVIDENCE

78 In support of this ground of appeal, the appellant submitted:

"104. In essence, it was necessary for his Honour to assess the combined force of the evidence which tended to show that the complainant was not reliable in her accounts of the alleged misconduct in Victoria and Queensland (and indeed any other evidence of unreliability). His Honour was then required to take into account any doubt he may then have experienced with respect to the alleged incidents in Victoria and Queensland in relation to the charged offences. His Honour, it is submitted, failed to do so. As a consequence, it is respectfully submitted his Honour erred in this regard" (Written Submissions dated 24 April 2013).

79 The evidentiary matters to which the appellant referred in relation to this submission were:

• CD's erroneous evidence as to when and where the first (uncharged) sexual assault occurred (the "Warrandyte allegation"). The trial judge found this affected CD's credibility "only to a minor degree" (see [18] above).
• CD's incorrect evidence concerning the Melbourne trip (see [19] above). Again, the trial judge found that this affected CD's credit only to a minor degree.
• Inconsistency between CD's evidence of sexual conduct occurring on the Melbourne trip and her description of that conduct in her police statement. The trial judge found that CD's credibility was not adversely affected by these differences (see [20] above).
• The trial judge's allegedly erroneous assessment of the Gold Coast trip allegations, as a result of his treatment of the evidence of CD's brother (see [21] above).

80 The appellant submitted that the combined force of the evidence concerning the Warrandyte, Gold Coast and Melbourne allegations was significant as they were occasions in respect of which the appellant was able to put some detailed propositions to CD, with the result that her evidence was found wanting. The appellant contrasted this to the position in relation to the allegations in the Indictment which were not able to be tested in the same detailed fashion.

81 I reject this ground of appeal. The attention the appellant's counsel devoted at the trial to the Warrandyte, Gold Coast and Melbourne evidence of CD, both in his cross-examination of CD and in his questions in chief to the appellant, left no doubt that the appellant's case was that CD's evidence on these context matters was unreliable, resulting in a significant, adverse effect on her credibility and the reliability of her evidence concerning the charged conduct. The attention given by the trial judge to these matters in his judgment reflected that focus, as did his observations in his judgment as to the extent, if any, to which they affected his assessment of CD's credibility and reliability.

82 As the appellant's counsel acknowledged at the commencement of his closing address at the trial, the trial judge was a very experienced judge, having sat on the District Court for almost 30 years and, according to the appellant's counsel, having done "hundreds and hundreds of jury trials and probably dozens of judge alone trials". The proposition that his Honour failed to appreciate that the evidence concerning the alleged uncharged sexual misconduct in Victoria and Queensland was of significance, both when taken as evidence of individual incidents and as a whole, is untenable and is belied by the attention his Honour devoted to those issues in his judgment.

GROUND 6: THE FINDINGS OF GUILT WERE UNREASONABLE

83 This ground seeks to invoke the Court's power under s 6(1) of the Criminal Appeal Act 1912 to set aside a verdict on the ground that "it is unreasonable, or cannot be supported, having regard to the evidence". The subsection refers to the verdict of a jury but s 133(1) of the Criminal Procedure Act 1986 provides that a judge's finding of guilt in a judge alone trial has, for all purposes, the same effect as a verdict of a jury. The Crown did not contend that s 6(1) was inapplicable.

84 Determination of such a ground requires this Court to review the record of the trial and to make "an independent assessment of the evidence, both as to its sufficiency and its quality" to enable it to answer the "central question" of whether this Court is satisfied that the appellant was proved beyond reasonable doubt to be guilty of the offences of which he was convicted (SKA v The Queen [2011] HCA 13; 243 CLR 400 at [14] and [20]. For the reasons following, the review and assessment that I have made lead me to answer this question in the affirmative.

85 The Crown case was based almost wholly upon CD's evidence. Accordingly, acceptance of her honesty and reliability was crucial to the success of its case. The trial judge had the advantage over this Court in seeing and hearing the witnesses give their evidence and the opportunity over the 12 day period during which the trial took place "to reflect upon that evidence and to draw conclusions from it, viewed as a whole" (Fox v Percy [2003] HCA 22; 214 CLR 118 at [23]; and see Weiss v The Queen [2005] HCA 81; 224 CLR 300 at [41]; SKA at [13]; Baini v The Queen [2012] HCA 59; 246 CLR 469 at [29]). Notwithstanding the need for an appellate court dealing with a ground such as the present to review the whole of the record of the case, the trial judge retains an advantage in having experienced the "feeling" of a case which an appellate court does not necessarily always fully share (Fox v Percy at [23]).

86 Accordingly, respect must be given to the trial judge's findings of guilt which form part of the record of the trial required to be reviewed by this Court (Weiss at [43]). This is particularly so where the judge's decision reveals a thorough examination of the evidence and specific challenges to the judge's reasoning, made by the grounds of appeal addressed earlier, have been rejected.

87 Having read the whole of CD's evidence, and the other evidence at the trial, I am not left with any reasonable doubt as to the veracity and substantial accuracy of CD's evidence concerning the matters upon which the appellant's convictions were based. The trial judge's acceptance of her evidence appears to me to have been entirely rational and justified. Like the trial judge, I would attach limited significance to the errors CD made concerning the Warrandyte and Melbourne allegations and the inconsistencies concerning the latter trip (see [79] above). Those seem to me to have been matters upon which CD could reasonably have been mistaken or confused without this reflecting adversely on her honesty in giving evidence and the reliability of her recollection of the appellant's sexual abuse of her.

88 Contrary to the appellant's submission, the timing and content of CD's complaints to others of the sexual abuse do not in my view reflect adversely on her honesty and reliability. Her delay in complaining was well-explained by her stated fear of her father, understandable in light of his proved conduct in horsewhipping her and her evidence of threats of the appellant to use the horsewhip if she disclosed his sexual misconduct. Further, her initial provision of only limited information to persons to whom she complained reflected an understandable reluctance to speak of the detail of what had been done to her.

GROUND 7: WHEN SENTENCING THE APPELLANT WITH RESPECT TO COUNTS 2, 6 AND 8, THE TRIAL JUDGE TOOK INTO ACCOUNT AGGRAVATING FACTORS THAT WARRANTED CONVICTION FOR A MORE SERIOUS OFFENCE CONTRARY TO THE PRINCIPLE IN R v DI SIMONI [1981] 147 CLR 383

89 By his sentencing judgment of 8 March 2013, the trial judge imposed an aggregate sentence, under s 53A of the Crimes (Sentencing Procedure) Act 1999, of imprisonment for 12 years, with a non-parole period of seven years and each period to date from 14 December 2012. As required by s 53A(2)(b), his Honour stated indicative sentences in respect of each of the offences, being two years for counts 3 and 10, four years for counts 4 and 7 and one year in relation to each of the remaining seven counts upon which the appellant was convicted.

90 His Honour assessed the sentences in respect of counts 2, 6 and 8 under s 61L which provides for the basic (that is, unaggravated) offence of indecent assault and specifies a maximum penalty of five years imprisonment. For the s 66C(2) offences (sexual intercourse with a child between the age and 10 and 16 under the authority of the offender) his Honour indicated sentences of four years and two years, the maximum penalty being 10 years imprisonment.

91 The appellant contended in relation to this ground of appeal that, in indicating sentences in relation to counts 2, 6 and 8, the trial judge, contrary to R v Di Simoni [1981] HCA 31; 147 CLR 383, took into account matters of aggravation that would have warranted the appellant's conviction for more serious offences. In particular, the appellant referred to his Honour's references in that context to the appellant's young age, "a gross abuse of the trust which reposed in [the appellant] as a father" and earlier prevailing sentencing practices for offences involving complainants of young age and breaches of relationships of trust.

92 The Crown accepted that the appellant had established error in this respect but submitted that the application for leave to appeal against the aggregate sentence imposed by the trial judge should be dismissed as no less severe sentence "is warranted in law and should have been passed" (s 6(3) of the Criminal Appeal Act).

93 The facts upon which the trial judge proceeded in relation to these counts were as follows:

"COUNTS 2, 3 AND 4

The victim commenced Year 7 in 1991 at The Hills Grammar School and counts 2, 3 and 4 occurred approximately one week after the victim attended a slumber party and following on from the victim getting her first period.

On the evening between 19 October 1990 and 30 April 1991 whilst the family was living at Kenthurst the offender again entered the victim's bedroom.

The offender told the victim he was going to 'show her how to be a good wife'. The offender touched and rubbed the victim's vagina (count 2) before digitally penetrating her with what the victim believed to be two fingers 'because it hurt' (count 3).

The offender then got undressed and removed the victim's tracksuit pants as well as her underpants. The victim was lying on her back and the offender prised her legs open with his own legs before fully penetrating her vagina with his erect penis (count 4). The incident hurt the victim and it continued for a period of time which the victim described as feeling like 'forever'. The offender ejaculated inside the victim.

The victim was directed by the offender to look into his eyes during the act of penetration. She recalled him saying 'it felt good'.

The victim was twelve years old at the time and had commenced to mature physically. She said the experience made her feel 'sort of numb ... I didn't feel anything ... I felt like someone else'.

The offender was forty-two years of age at the time.

COUNTS 6, 7 AND 8

On an occasion after the events comprising counts 2, 3 and 4 the victim and the offender were in a spa bath together which was situated near the main bedroom. It was a warm day and the victim had earlier been swimming in the pool. Initially she was by herself in the spa before the offender came and joined her and he was naked when he entered the spa.

The offender got undressed and instructed the victim to rub his penis 'up and down'. The victim did as she was told. The [offender's] penis became erect and he was guiding her hand at the time (count 6).

The offender then told the victim that he wanted to put his erect penis in her mouth. The victim sat between the offender's legs on the steps within the spa. The offender placed his erect penis into her mouth causing the victim to gag. She resisted his penis fully entering her mouth. The offender's penis was in the victim's mouth for approximately ten seconds (count 7).

The offender then got back into the water and instructed the victim to finish masturbating his erect penis which she did (count 8). The offender ejaculated into the water of the spa and then left. The whole incident lasted two to three minutes.

The victim was twelve years old at the time of these offences and the offender was forty-two years old".

94 I agree with the Crown's submission that even if one removes from consideration the factors of CD's young age and the appellant's position of authority, the sentences indicated by his Honour in respect of counts 6 and 8 of 1 year imprisonment for each were lenient bearing in mind the specified maximum penalty of imprisonment for 5 years for each. Particularly is this so in the case of count 8 which resulted from CD being required to masturbate the appellant to ejaculation after she refused to continue the fellatio the subject of count 7.

95 I also consider that the appropriate sentence for count 2 is at least that indicated by his Honour for that count, when viewed on a stand alone basis without regard to issues of concurrency and to the factors of CD's young age and the appellant's position of authority.

96 As his Honour imposed an aggregate sentence under s 53A, the question arising out of s 6(3) of the Criminal Appeal Act is whether any less severe sentence than that aggregate sentence was warranted in law and should have been passed. As I consider the appropriate sentences in respect of the remaining counts also to be at least those indicated by his Honour, I conclude that no lesser sentence than the aggregate sentence is warranted.

97 As the sentence in question here is a single aggregated sentence in respect of all of the offences of which the appellant was convicted, the question of construction s 6(3) of the Criminal Appeal Act discussed in such authorities as Arnaout v The Queen [2008] NSWCCA 278; 191 A Crim R 149, McMahon v R [2011] NSWCCA 147 and AB v R [2013] NSWCCA 160 does not arise. In AB v R, Adams J described that question as follows:

"The issue is whether the sub-section should be read to enable sentences other than that under appeal to be considered, they having been imposed to reflect the total criminality of which the offence applicable to the sentence under appeal is a part, in other words, whether the phrase 'some other sentence' [refers] to the particular sentence under appeal or the overall sentence imposed" (at [64]).

ORDERS

98 For these reasons, the appellant's appeal against his convictions and application for leave to appeal against his sentence should be dismissed.

99 ADAMS J: I agree with Macfarlan JA.

100 LATHAM J: I agree with Macfarlan JA.

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Decision last updated: 08 November 2013