SUPREME COURT OF VICTORIA
COURT OF APPEAL	
		
S EAPCR 2021 0142	

MOHAMMED NURAMIN	Applicant	
		
v		
		
THE KING	Respondent	

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JUDGES:	EMERTON P, KYROU and T FORREST JJA	
WHERE HELD:	Melbourne	
DATE OF HEARING:	20 July 2022	
DATE OF JUDGMENT:	4 October 2022	
MEDIUM NEUTRAL CITATION:	[2022] VSCA 215	First Revision (28 August 2023): [85], [98]

Second Revision (27 February 2024): [4] n 4, [88] n 25, [90], [91] n 26, [94] n 27, [95] n 28	
JUDGMENT APPEALED FROM:	[2021] VCC 1318 (Judge Carlin)  	

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CRIMINAL LAW – Appeal against conviction – Applicant and two co-offenders allegedly agreed to supply drugs to and sexually penetrate complainants aged 12 and 11 – Applicant and co-offenders each supplied drugs to complainants and sexually penetrated 11 year old complainant – Applicant charged and convicted both as principal offender in sexual offences and as complicit in sexual offences of co-offenders – Applicant and co-offenders charged and convicted either as principal offenders or as complicit offenders for supplying drugs  to persons under 18 – Mens rea requirement for complicity charges where offence one of strict or absolute liability – Whether prosecution required to prove to criminal standard applicant knew complainant was a child under 12 for purpose of sexual penetration charges based on complicity – Whether prosecution required to prove to criminal standard applicant knew complainants under 18 for drug supply charges based on complicity – Prosecution required to prove to both matters to criminal standard – Jury convicted applicant of complicity charges based on misdirection about burden borne proof by prosecution – Applicant suffered substantial miscarriage of justice – Leave to appeal granted, appeal allowed –  Convictions on complicity charges set aside – Applicant resentenced on remaining charges.

Crimes Act, ss 49A, 49D, 49ZC, 49W, 323, 324, 324A, 324B, 324C; Drugs, Poisons and Controlled Substances Act 1981, s 71B.

Giorgianni v The Queen (1985) 156 CLR 473 and R v LK (2010) 241 CLR 177 applied.
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Counsel	
Applicants:		Ms G Connelly	
Respondent:		Ms E Ruddle KC	
	
Solicitors	
Applicants:		Greg Thomas Barrister & Solicitor	
Respondent:		Ms A Hogan, Solicitor for Public Prosecutions	

Emerton P
KYROU JA
T FORREST JA:
1	On 29 April 2021, following a trial by jury, the applicant was convicted of 14 offences arising from events one evening in December 2018 when he and two co-offenders, ‘RR’ and ‘NH’, picked up two girls aged 11 and 12 respectively, supplied them with drugs and alcohol, and sexually penetrated one of them. 
2	The Crown case was that the three men had reached an agreement, arrangement or understanding to carry out the offences and that all three were guilty of all charges, irrespective of who carried out the actual acts.
3	The jury convicted the men of drugs supply offences in relation to each girl and all sexual acts involving the 11-year-old girl, Daisy Alexander (‘Daisy’). They acquitted each accused of all sexual acts against the 12-year-old girl, Katie Casey (‘Katie’).
4	On 10 September 2021, the applicant (also referred to as ‘MN’) and his co-offenders RR and NH were sentenced as follows:
	Charge		Offence		Max		Sentence		Cumulation	
			MN		RR		NH	
	1		Supply drug of dependence to a child, s 71B Drugs, Poisons and Controlled Substances Act 1981 (Daisy)		15 years	
6 months		1 mth		1 mth		1 mth	
	2		Supply drug of dependence to a child (Katie)		15 years		6 months		1 mth		1 mth		1 mth	
	3		Sexual penetration of a child under 12, s 49A(1) Crimes Act 1958 		25 years		
	7 years
			7 mths		8 mths		1 year	
	4		Sexual penetration of a child under 12 		25 years		
	8 years
			Base	
	5		Sexual assault of a child under 16, s 49D of the Crimes Act 		10 years		3 years		3 mths		4 mths		4 mths	
	6		Sexual penetration of a child under 12 		25 years		8 years		5 mths		6 mths		6 mths 	
	7		Sexual penetration of a child under 12 		25 years		8 years		6 mths		1 year		1 year	
	8		Sexual penetration of a child under 12 		25 years		8 years		5 mths		6 mths		6 mths	
	9		Sexual penetration of a child under 12 		25 years		8 years		5 mths		6 mths		6 mths	
	13		Sexual penetration of a child under 12 		25 years		7 years		4 mths		6 mths		6 mths	
	14		Sexual assault of a child under 16 		10 years		3 years		3 mths		4 mths		4 mths	
	Total Effective Sentence MN:		11 years 4 months’ imprisonment	
	Non-Parole Period MN:		6 years 9 months	
	Total Effective Sentence RR:		12 years 6 months’ imprisonment	
	Non-Parole Period RR:		7 years 6 months	
	Total Effective Sentence NH:		12 years 10 months’ imprisonment 	
	Non-Parole Period NH:		7 years 8 months	
	Other Relevant Orders: 
Serious sex offenders charges 5 – 14; life registration Sex Offenders Registration Act 2004	
5	The applicant now seeks leave to appeal against his convictions on charges 1 to 3 and 7 to 9 and his sentence.  In the conviction appeal he raises a single ground of appeal:
	A substantial miscarriage of justice arose in respect of charges 1 to 3 and 7 to 9 as a result of the erroneous failure to direct the jury that they had to be satisfied beyond reasonable doubt that the parties to the agreement knew the age of the complainants.
6	Charges 1 to 3 and 7 to 9 involved offending conduct by the other two men in which the applicant was allegedly complicit by reason of an agreement, arrangement or understanding with them to commit the offences. The agreement put to the jury by the Crown was an agreement to give the complainants alcohol and drugs and then to use the alcohol and drugs to engage in sexual activity with them, both penetrative and non-penetrative. The Crown submitted, and the trial judge accepted, that the Crown did not have to prove that any agreement, arrangement or understanding was to have sex with underage girls, or that the accused men had to know the girls’ ages for the purposes of committing any of the offences.
7	The applicant submits, to the contrary, that the Crown was required to prove that the men knew the age of the relevant complainant (or, more specifically, that the complainant was under a certain age) in order to be complicit in the offending against her, even though the Crown did not have to prove that that the complainant’s age was known by the principal offender. He accepts that the Crown did not have to prove such knowledge against him in respect of charges 4 to 6 and 13 to 14, where he was the principal offender. 
8	For the reasons that follow, leave to appeal will be granted and the appeal allowed. The applicant’s convictions on charges 1 to 3 and 7 to 9 will be set aside and a new trial ordered in relation to those charges.  The Court will resentence the applicant on charges 4, 5, 6, 13 and 14.
Circumstances of the offending
9	At the time of the offending, the applicant was 21 years old, RR was 22 and NH was 28.  The complainants, aged 11 and 12, were in the care of the State and living away from their families in a residential unit in western Melbourne.
10	Katie had come into contact with RR through her father. On Sunday, 2 December 2018, Katie called RR and arranged to meet. Late on the evening in question, Katie and Daisy left the residential unit and walked to a nearby service station. They believed that they were going to drink alcohol and smoke cannabis with RR. RR and the applicant picked up the complainants at the service station and drove them to RR’s house in Werribee.  The complainants started drinking alcohol supplied by RR and the applicant in the car on the way there. Once at RR’s house, RR and the applicant took the complainants to a shed at the back of the house where they were joined by NH. The three men cut up cannabis, rolling it into cigarettes, and gave it to the complainants to smoke (charges 1 and 2).
11	The group then moved to sit on the floor, where RR wrapped his arms around Daisy, hugging her as she tried to push him away. RR kissed her on the neck and lips, and pinched and touched her breasts. Daisy asked RR to stop and tried to push him away, but he continued. He rubbed his foot against Daisy’s vagina outside her clothes and then put his hands down her pants, playing with her vagina. RR inserted his finger into Daisy’s vagina (charge 3). She continued to push him away.
12	Daisy then got up and walked over to the applicant. She sat on his lap while the others watched. The applicant said something to RR and NH in a foreign language, before telling them, in English, to leave. RR, NH and Katie left the shed. 
13	The applicant took off his pants before undressing Daisy. He kissed her lips, neck and cheek, telling her to sit down and then put his penis in her mouth. He grabbed the back of Daisy’s head, and pushed his penis in and out of her mouth until he ejaculated in her mouth (charge 4). He then sucked Daisy’s vagina (charge 5) before telling her to lie down and inserting his penis into her vagina, without a condom, and having intercourse with her for several minutes (charge 6). Daisy was crying and calling for help, but the applicant put his hand over her mouth.
14	Once the applicant had finished, the others returned to the shed. They then went out as a group to purchase more alcohol, returning to RR’s house, where the complainants consumed more alcohol and cannabis.
15	At this point, NH took Daisy to a white van parked in the street. Daisy thought NH was taking her to buy more cannabis. NH pulled her into the back of the van, shutting the curtains and placing her down on the floor. NH had penile/vaginal intercourse with Daisy without a condom (charge 7). He then told Daisy to sit up and suck his penis. She spat it out, telling him that she was only 11 years old, to which NH responded ‘That’s okay’ and reinserted his penis into her mouth until he ejaculated (charges 8 and 9).
16	At some point, the three men decided that it was time to take the complainants back to where they lived. RR drove the car and the applicant placed himself in the back seat with Daisy. He touched her breasts, rubbed inside the lips of her vagina before making her suck his fingers (charge 13). The applicant then grabbed her hand and put it down his pants forcing her to rub his penis (charge 14).
17	The complainants were dropped back at the residential unit at 5:30 am. Workers at the unit observed the complainants to be intoxicated and they were placed in separate accommodation. Daisy made complaints about the sexual offending to her carers and workers on Monday 3 December 2018. That evening, she was conveyed to the Royal Children’s Hospital for medical examination and to undergo forensic procedures. Swabs and samples were taken from her breasts and underwear, which were subjected to DNA analysis.
The form of the charges
18	The three men were charged with the same offences, either as the principal perpetrator or as complicit in the charged offences.  The charges in respect of which the applicant seeks leave to appeal were expressed in the indictment as follows:
CHARGE 1: The Director of Public Prosecutions charges that [RR], [the applicant] and [NH] at Werribee in Victoria on the 3rd day of December 2018 supplied a drug of dependence, namely cannabis, to a child [Daisy] for the use of that drug of dependence by [Daisy].
…
CHARGE 2: The Director of Public Prosecutions charges that [RR], [the applicant], and [NH] at Werribee in Victoria on the 3rd day of December 2018 supplied a drug of dependence, namely cannabis, to a child [Katie] for the use of that drug of dependence by [Katie]. 
	…
	CHARGE 3: The Director of Public Prosecutions charges that [RR], [the applicant] and [NH] at Werribee in Victoria on the 3rd day of December 2018 took part in an act of sexual penetration with [Daisy], a child under the age of 12, in that [RR] introduced his finger into the vagina of [Daisy].
	…
CHARGE 7: The Director of Public Prosecutions charges that [RR], [the applicant] and [NH] at Werribee in Victoria on the 3rd day of December 2018 took part in an act of sexual penetration with [Daisy], a child under the age of 12, in that [NH] introduced his penis into the vagina of [Daisy].
	…
CHARGE 8: The Director of Public Prosecutions charges that [RR], [the applicant] and [NH] at Werribee in Victoria on the 3rd day of December 2018 took part in an act of sexual penetration with [Daisy], a child under the age of 12, in that [NH] introduced his penis into the mouth of [Daisy].
…
	CHARGE 9: The Director of Public Prosecutions charges that [RR], [the applicant] and [NH] at Werribee in Victoria on the 3rd day of December 2018 took part in an act of sexual penetration with [Daisy], a child under the age of 12, in that [NH] introduced his penis into the mouth of [Daisy].
	Particulars: After she told him she was 11 years old.
19	As discussed, the complicity charges were based on an alleged agreement between the co-offenders. At trial, the Crown sought to prove the agreement between the co-offenders inferentially from the following facts:
(a)	the phone calls passing between RR’s phone and the complainants’ phones prior to the complainants being picked up;
(b)	the availability of alcohol in the car upon the complainants being picked up;
(c)	the phone contact between the applicant’s phone and NH’s phone in the car on the way to RR’s home;
(d)	the fact that the offenders spoke in their own language in the presence of the complainants, even though they could speak English;
(e)	the provision of alcohol and cannabis to the complainants upon arrival at the shed and throughout the night;
(f)	the fact that each of the men offended against each of the complainants;
(g)	the fact that the first sexual offending against Daisy by RR occurred in the presence of the others;
(h)	the fact that the remaining offending occurred in private; and
(i)	the coordinated swapping of positions in the car on the way home.
Conviction appeal
20	The applicant seeks to appeal his convictions for offending conduct in which he was found to be complicit and was not the principal perpetrator. He contends that a substantial miscarriage of justice arose in respect of charges 1 to 3 and 7 to 9 as a result of the fact that the jury was not directed that it had to be satisfied beyond reasonable doubt that the parties to the alleged agreement knew that Daisy was under 12 years of age (for the purpose of the sexual penetration charges involving complicity) and that Daisy and Katie were under 18 years of age (for the purpose of the drug supply charges).  
21	According to the applicant, the Crown had to prove that each party to the agreement, arrangement or understanding alleged knew or believed in the existence of facts that made the object of the agreement, arrangement or understanding an offence. In this case, that included the fact that the complainants were under specified ages.
Statutory framework
The offences
22	The sexual offending of which the applicant was convicted involved the sexual penetration of a child under the age of 12 (Daisy).  
23	Section 49A of the Crimes Act provides as follows:
	Sexual penetration of a child under the age of 12
(1)	A person (A) commits an offence if —
(a)	A intentionally —
(i)	sexually penetrates another person (B); or
(ii)	causes or allows B to sexually penetrate A; or
(iii)	causes B —
(A)	to sexually penetrate themselves; or
(B)	to sexually penetrate another person (C); or
(C)	to be sexually penetrated by C: and
(b)	B is a child under the age of 12 years.
(2)	A person who commits an offence against subsection (1) is liable to level 2 imprisonment (25 years maximum).
(3)	The standard sentence for an offence against subsection (1) is 10 years.
24	A mistaken but honest and reasonable belief that the victim was 12 years of age or more is not a defence to the offence under s 49A: s 49ZC(a).  Section 49A may be contrasted with s 49D, which creates the offence of sexual assault of a child under the age of 16. Section 49W(1) provides that it is a defence to a charge for an offence against s 49D(1) if, at the time of the conduct constituting the offence, the victim was 12 years of age or more and the offender reasonably believed that the victim was 16 years of age or more.
25	Section 71B(1) of the Drugs, Poisons and Controlled Substances Act provides:
	Subject to subsection (1A), a person who, without being authorised by or licensed under this Act or the regulations to do so—
(a)	supplies a drug of dependence to a child for the purposes of the supply of that drug of dependence by that child to another person, whether a child or adult; or
(b)	supplies a drug of dependence to a child for the use of that drug of dependence by that child—
	is guilty of an indictable offence and liable to a penalty of not more than 1000 penalty units or level 4 imprisonment (15 years maximum) or both.
26	Section 71B(4) provides: 
	It is a defence to a charge under this section for a person charged to prove that he or she believed on reasonable grounds that the person to whom the drug of dependence was supplied was 18 years of age or older.
Complicity 
27	The laws relating to criminal complicity in Victoria are found in pt II, div 1 of the Crimes Act. Division 1, headed ‘Abettors, accessories and concealers of offences’ was inserted into the Crimes Act in September 2014 by the Crimes Amendment (Abolition of Defensive Homicide) Act 2014. The broad purpose of the amendment was described in the Explanatory Memorandum for the Bill as follows:
	This Subdivision will improve the substantive law of complicity by introducing simpler, internally consistent laws and abolishing problematic common law rules. These amendments will facilitate simpler, more understandable jury directions on complicity. These issues were comprehensively examined in the ‘Simplification of Jury Directions Project’ report produced by a team [led] by the Honourable Justice Mark Weinberg in August 2012. The Bill draws extensively from the recommendations in that report to reform the law of complicity.
28	Consistently with this stated design, s 324C was enacted to abolish (subject to one exception) the common law rules of complicity in Victoria:
(1)	The law of complicity at common law in relation to aiding, abetting, counselling or procuring the commission of an offence is abolished.
(2)	The doctrines at common law of acting in concert, joint criminal enterprise and common purpose (including extended common purpose) are abolished.
Note
The common law concerning the circumstances in which a person may withdraw from an offence in which the person would otherwise be complicit is not abolished by this section.
29	Sections 323–30 of the Crimes Act replaced the common law principles.  
30	Centrally, s 324 deems a person to have committed an offence in circumstances where they are ‘involved’ in its commission:
(1)	Subject to subsection (3), if an offence (whether indictable or summary) is committed, a person who is involved in the commission of the offence is taken to have committed the offence and is liable to the maximum penalty for that offence.
(2)	Despite subsection (1), a person is not taken to have committed an offence if the person withdraws from the offence.
…
(3)	Nothing in this section imposes liability on a person for an offence that, as a matter of policy, is intended to benefit or protect that person.
31	Section 323(1) sets out four bases upon which a person may be found to be ‘involved’ in an offence:  
(1)	For the purposes of this Subdivision, a person is involved in the commission of an offence if the person—
(a)	intentionally assists, encourages or directs the commission of the offence; or
(b)	intentionally assists, encourages or directs the commission of another offence where the person was aware that it was probable that the offence charged would be committed in the course of carrying out the other offence; or
(c)	enters into an agreement, arrangement or understanding with another person to commit the offence; or
(d)	enters into an agreement, arrangement or understanding with another person to commit another offence where the person was aware that it was probable that the offence charged would be committed in the course of carrying out the other offence.
32	Section 323(3) provides that a person may be involved in the commission of an offence:
(a)	even if the person is not physically present when the offence, or an element of the offence, is committed; and
	(b)	whether or not the person realises that the facts constitute an offence.
33	Further, s 324A provides that a person who is involved in an offence may be found guilty whether or not any other person is prosecuted for or found guilty of the offence.  Moreover, by virtue of s 324B, an offender’s role in the offending does not need to be determined.  That section provides:         
	A person may be found guilty of an offence by virtue of section 324 if the trier of fact is satisfied that the person is guilty either as the person who committed the offence or as a person involved in the commission of the offence but is unable to determine which applies.
Judge’s charge 
34	The trial judge charged the jury on the basis that knowledge of the age of the victim was not an element of any of the offences with which the applicant was charged. Thus, in relation to the drug supply charges, her Honour said: 
	This offence [of supplying a drug of dependence to a child] would be committed by any person who one, gave cannabis, two, to [Daisy] (that’s charge 1) or to [Katie] (charge 2), … three, was intending it to be for her use, and element four is when that person was not authorised or licensed to do so. 
35	Similarly, in relation to the charge of sexual penetration of a child under 12, her Honour told the jury: 
That offence would be committed by any person who, one, intentionally sexually penetrated [Daisy] and, two, that [Daisy] was under the age of 12 at the time. So … they’re the two elements, intentionally sexually penetrated [Daisy], and second element that she was under the age of 12 at the time.
36	In relation to the drug supply charges, the trial judge explained to the jury how the applicant’s knowledge of age could be relevant to the a defence of honest and reasonable mistake of fact: 
	If you are satisfied beyond reasonable doubt that an accused did supply cannabis to [Daisy] or [Katie] - either by supplying himself or by being a party to an agreement,  understanding or arrangement that they be supplied - that accused would still have a defence to the charge if, at that time, he reasonably believed that [Daisy] – that’s in relation to charge 1 - or [Katie] - in relation to charge 2 - were or was 18 years of age or older. 
37	The trial judge described the shift in onus in relation to the drug supply charges as follows: 
	The onus of proof in relation to those defences rests on the accused who asserts it. In this case, all three accused do rely on this defence. This is the only time in this trial that the onus of proof shifts from the prosecution to the accused.
	…
	Each accused has the burden of proving on the balance of probabilities – so, not beyond reasonable doubt, just on the balance of probabilities - that he reasonably believed that [Daisy] and/or [Katie] were 18 years of age or older
38	The trial judge then went on to explain how the three accused might be found liable for the drug supply offences on a complicity basis:
	Before you could find an accused who did not actually perform the physical acts alleged in a charge guilty of that charge, you would need to be satisfied beyond reasonable doubt of all of the following four elements.
	…
	One, that the accused had an agreement, arrangement or understanding with other people to commit the offence charged. And that agreement, arrangement or understanding remained in existence when the offence was committed.
…
	Element 2 is that the accused did some act to support this agreement. Element 3 is that a party to the agreement did commit the offence. Element 4 is that when the accused agreed to commit the offence he had the necessary state of mind for that offence.
39	The trial judge explained the first element — the need for there to be an agreement to commit an offence — as follows: 
	So there are two parts to this element. First, you must be satisfied that the accused agreed with at least one other person to commit the offence, whichever offence you are considering - whether it is supply cannabis to a child, whether it is sexual penetration with a child under 12.
	…
	The agreement must have been to commit the particular offence charged. This element will not be satisfied if the accused agreed to pursue some other form of activity that is not criminal or a different offence. However, it  is not necessary that they knew they were agreeing to commit a crime, as long as they agreed to do something which was, in fact, criminal.  For example, it does not matter if the accused did not realise that sexual activity with an 11 year old or a 12 year old was an offence.
40	It is plain that the judge did not consider, and did not instruct the jury, that the Crown needed to show that the accused knew the complainants’ ages (or that they were under a certain age) in order for an agreement to commit the offences charged to be made out. Crucially, the judge told the jury: 
	If you are satisfied beyond reasonable doubt that the three accused had an agreement to supply [Daisy] and [Katie] with cannabis, that would be sufficient to satisfy this part of the element in relation to charges 1 and 2.
	If you are satisfied beyond reasonable doubt that the three accused had an agreement to engage in sexual activity, including penetration, with [Daisy] and [Katie], that would be sufficient to satisfy this part of the first element in relation to the sexual offence charges.
41	The judge described the necessary mental state as follows: 
	The fourth element is the accused’s mental state. The prosecution must prove that when the accused agreed to commit the offence he had the necessary state of mind to do so.
	In other words, for the supply of cannabis charge, that he intended it to be for the use of [Daisy] and [Katie] and in relation to the sexual penetration of a child charges, that he intended the child be sexually penetrated and finally in relation to the sexual assault charges that he intended that [Daisy] be touched in that way, and further, where relevant, that he had no defence of reasonable belief in age.
	To explain the operation of the defence of reasonable belief in age further in relation to complicity, say, [RR] satisfied you on the balance of probabilities that he believed [Katie] was over 16 and that his belief was reasonable, then he would be not guilty of charge 10 and no other accused could be found guilty of that charge either. Not only that, RR would be not guilty of charges 11 and 12 even if [the applicant] and [NH] did not have such a defence.
42	In short, the jury was instructed that in order to establish that the applicant was guilty of the s 49A offences carried out by others (charges 3, 7, 8 and 9), the prosecution did not have to prove that the applicant knew Daisy was under 12.  Likewise, the jury was directed that the prosecution did not have to prove that the applicant knew that Daisy and Katie were under 18 in order to be guilty of the drug supply offences by reason of complicity.
43	Hence, while the age of the complainants was put in issue before the jury, it was only in the context of the possible defence of honest or reasonable mistake of fact (which, for present purposes, only applied to the drug supply offences).  In considering that defence, the onus of proof was reversed and the ‘balance of probabilities’ standard applied.  The jury was not directed to consider knowledge of age in the context of what the prosecution needed to prove on the standard of beyond reasonable doubt.  
Submissions
44	The applicant accepts that the prosecution was not required to show that he knew Daisy’s age in respect of the charges where it was alleged that he sexually penetrated or sexually assaulted her. According to the applicant, however, the prosecution bore the onus of proving to the criminal standard that he knew that Daisy was under 12 for the purpose of the sexual penetration offences carried out by others and that he knew the complainants were both under 18 for the purpose of the drug supply offences.  
45	The applicant submits that this follows from the express language of s 323(1)(c) of the Crimes Act, which requires the Crown to establish the existence of an agreement, arrangement or understanding ‘to commit the offence’. According to the applicant, the requirement that it be shown that he agreed ‘to commit the offence’ brought with it the requirement to show that he knew the essential facts constituting the offence with which he was charged. 
46	The applicant further submits that s 323(1) uses words that have an established meaning in the common law pertaining to complicit offending. Parliament’s reform of the law of complicity in 2014 did not abolish the need for a complicit offender to know the essential matters which made the principal’s conduct unlawful, even in respect of strict or absolute liability offences.
47	In this context, counsel for the applicant drew the Court’s attention to a number of authorities on accessorial liability, notably Giorgianni v The Queen and R v LK. Counsel submitted that, following the reasoning of the High Court in LK, it was difficult to see how an agreement could be entered into as a matter of ordinary English usage without intending the subject matter of the agreement, in this case, to commit the offence that was the offence charged. 
48	The applicant submits that s 323(3) of the Crimes Act, which provides that a person may be in involved in the commission of an offence even if that person does not realise that ‘the facts’ constitute an offence, supports the construction that he advances. What is meant by ‘the facts’ constituting the offence is not specified, but they must be the facts that fall within the knowledge of the complicit offender and pertain to the offence that the complicit offender has agreed will be performed by another person. Hence, the applicant submits, while it is undoubtedly clear that Parliament intended to create an offence of absolute liability in relation to the sexual offending the subject of charges 3, 7, 8 and 9, and a strict liability offence with a specific defence for the drug supply offending (charges 1 and 2), limiting the mens rea required for the substantive offences (carried out by the principal offender) did not obviate the need for the prosecution to establish a specific mental state for the complicit offender when relying on the extension of liability created by ss 323(1)(c) and 324(1) of the Crimes Act. The need to intentionally come to an agreement, arrangement or understanding to commit a crime carries with it the need to know the essential facts that make the object of the agreement, understanding or arrangement an offence. 
49	In this context, the applicant submits that the provision in s 323(3)(b) that it is not necessary for a party to an agreement to realise that ‘the facts’ constitute an offence is no more than a statement of the common law position that it is not necessary to prove that an accused knew the legal characterisation of the conduct in question. It does not detract from the requirement to prove knowledge of the essential facts that constitute the offence or offences charged. The applicant did not have to know that what he was doing was unlawful, but he did have to know essential facts, which was that Daisy was under 12 and Katie and Daisy were under 18. These were said to be the elements of the offences in question.
50	Accordingly, the applicant submits, in relation to charges 1 and 2 (supply of drugs of dependence to a child), the prosecution had to prove to the criminal standard that the applicant knew that Daisy and Katie were children, which is a person defined in the Crimes Act as being under the age of 18. Likewise, in order to secure convictions on charges 3, 7, 8 and 9 (sexual penetration of a child under 12), it was necessary for the prosecution to prove that the applicant knew Daisy was under 12. 
51	The applicant submits that the entire case at trial proceeded on the incorrect assumption that there was no need to establish any mental state in respect of the agreement between the co-offenders beyond an agreement to perform the acts constituting the offending: in this case, taking the girls away, plying them with alcohol and drugs and each of the accused men sexually penetrating them. To the extent that no submissions were made at trial about the importance of knowledge of the ages of the complainants, it was because all members of counsel were labouring under the mistaken belief that it was not necessary for the prosecution to prove that aspect of the complicity offences. And because the trial was conducted on the basis that the prosecution did not have to prove that any of the accused knew that the complainants were under 12, 16 or 18 (depending on the charge), the jury was not correctly directed as to what the prosecution was required to prove. The direction that the accused men did not need to know the legal characterisation of the sexual acts as crimes was apt, wrongly, to remove the states of mind of the accused men entirely from the jury’s consideration of whether the prosecution had proved its case. The jury did not decide whether the accused men knew the ages of the complainants, because they were directed they did not need to do so. 
52	The Crown submits, to the contrary, that the applicant cannot point to any misdescription of the elements of the offences for which he was convicted. The trial judge accurately described the elements of each of the offences. It is clear from the words of s 49A(1) of the Crimes Act that it is not an element of the offence that the accused know or believe the complainant to be under the age of 12. The offence is made out by the mere fact that the complainant is under the age of 12. In the case of the drug supply charges, it is again clear that it is not an element of the offence that the accused be aware of or have a belief in the age of the child to whom the drug is supplied. 
53	According to the Crown, it is trite to say that in order to be criminally liable for offending, the agreement must be to commit the necessary acts which render the conduct criminal. It is quite another thing to allege, as the applicant does, that there is an additional element to prove beyond the agreement to do the offending acts, in order to establish the case on the complicity basis. The words of s 323(1)(c) of the Crimes Act do not support such a proposition. Described simply, to commit the offences pursuant to s 49A(1) of the Crimes Act the primary offender had to intend to sexually penetrate Daisy and Daisy was under 12 years of age. It is no part of the charge against the primary offender that he knew or intended Daisy to be under 12 years of age. The mere fact that she was under 12 years of age makes out the second element of the offence. To establish agreement to commit the offence, the prosecution only needed to satisfy the jury that the complicit offender agreed that Daisy would be sexually penetrated and Daisy was under the age of 12.  The same logic applies to the drug supply offences.
Discussion
54	As set out above, s 323(1)(c) of the Crimes Act provides that a person is ‘involved’ in the commission of an offence if the person enters into an agreement with another person ‘to commit the offence’ with which he or she has been charged.  Once ‘involved’, if the offence is committed, the person involved is taken to have committed the offence:  s 324(1).
55	In this case, in order to determine whether the applicant was ‘involved’ in the commission of the offences by his co-offenders, it is necessary to decide whether the agreement to supply drugs to Daisy and Katie and to sexually penetrate Daisy was predicated on actual knowledge that the girls were under 18 (in the case of the drug supply offences) and that Daisy was under 12 (in the case of the sexual penetration offences).  
56	The contest between the parties to this appeal turns on whether the agreement to commit the offence(s) had to be an agreement to carry out the offending acts or an agreement to commit the offending acts complete with the knowledge of what we will call the ‘age factor’.
57	The starting point for construing s 323(1)(c) is the language in which the provision is expressed. The task of construing statutory language begins and ends with a consideration of the text itself.  However, context and purpose remain important.  In SZTAL v Minister for Immigration and Border Protection, Kiefel CJ and Nettle and Gordon JJ said:
	The starting point for the ascertainment of the meaning of a statutory provision is the text of the statute whilst, at the same time, regard is had to its context and purpose. Context should be regarded at this first stage and not at some later stage and it should be regarded in its widest sense. This is not to deny the importance of the natural and ordinary meaning of a word, namely how it is ordinarily understood in discourse, to the process of construction. Considerations of context and purpose simply recognise that, understood in its statutory, historical or other context, some other meaning of a word may be suggested, and so too, if its ordinary meaning is not consistent with the statutory purpose, that meaning must be rejected.
58	The language of s 323(1)(c) provides some assistance in determining whether ‘the offence’ the subject of agreement is simply the actus reus, that is, the supply or the penetration, or whether it is the actus reus and knowledge of the age factor. The use of the word ‘intentionally’ in sub-para (1)(a) in relation to assistance, encouragement and direction, and the hinging of ‘involvement’ in para (1)(c) on a deliberate act such as an agreement, arrangement or understanding, plainly requires there be knowledge of what is being assisted, encouraged or directed, and as to what is being agreed to, arranged or understood.  Parties must intend to enter into an agreement and must intend the substance of that agreement.  Proof of intention to commit an offence therefore requires proof of the accused’s knowledge of, or belief in, the facts that make the proposed conduct an offence.  The applicant is correct to point out that s 323(3)(b) is based on the person involved having knowledge of ‘the facts’ that constitute the offence, even if not aware that those facts constitute an offence.
59	In this case, it cannot be doubted that the facts that made the proposed (agreed) sexual penetration an offence under s 49A of the Crimes Act included the age factor.  The facts that made the proposed (agreed) supply of drugs an offence included that the complainants were children, that is, under 18 years of age.
60	The effect of this is, of course, that in order to be convicted, the person ‘involved’ must be shown to know more about the facts constituting the offence (in this case, the age factor) than the principal offender.  The difference in the state of mind to be proved for the complicit offender relative to the principal offender significantly raises the bar to securing a conviction against the complicit offender, but this might be said to reflect the purely derivative nature of the offending by the complicit offender.
61	Nonetheless, this discrimination between co-offenders is problematic having regard to  s 324B, which provides that a person may be found guilty under s 324 (that is, as complicit) if the trier of fact is satisfied that the person is guilty either as the principal offender or as the complicit offender, but is unable to determine which applies. 
62	Discriminating between co-offenders has particular relevance to the drug supply charges in the present case, as the indictment did not specify whether the men were charged as principal or complicit offenders and it is impossible to know the basis upon which each of them was convicted. The discrimination means that in order for the applicant to have been found guilty as a principal offender, the prosecution did not have to establish any knowledge about the age of the complainants. However, in order for him to have been found guilty as a complicit offender, the prosecution needed to establish that he knew that the complainants were under 18.
63	If there are different mens rea requirements for principal and complicit offenders, yet the jury can convict on either basis if uncertain about the role of the offender, it will present a conundrum for an accused who has available to him or her a defence such as reasonable belief in age as to how to best run the defence. An accused may be required to raise the defence before knowing whether it is necessary, potentially confusing the jury as to where the burden of proof lies.
64	Conversely, the prosecution would need to prove the additional mental element (ie knowledge of age) for each offender, based on the possibility the jury might consider the offender to have been a complicit offender. Practically speaking, this imposes a blanket requirement on the prosecution to prove knowledge of age for each offender. This would of course encourage the prosecution, wherever possible, to clearly identify the roles of each offender – something which was long been regarded as desirable practice at common law.
65	Section 324B seems to assume that the mental states required of the principal and complicit offender are identical. This would be consistent with the ‘essential facts’ of the present offences being simply, in each case, the actus reus and the age of the complainants.
66	However, the proposition that there may be different mens rea requirements for principal and complicit offenders depending on the elements of the offence charged is supported by common law principles preserved in the statutory provisions.  They turn on the existence of ‘an agreement, arrangement or understanding’ to commit an offence, which requires, as we have already noted, knowledge of, or belief in, the facts that make the proposed conduct an offence.
67	As explained in the Explanatory Memorandum, the genesis of pt II, div 1 of the Crimes Act, and the current scheme of accessorial liability, lies in recommendations made in a report published in August 2012 entitled the ‘Simplification of Jury Directions Project’ report (‘Weinberg report’). The Weinberg report proposed several reforms to the common law rules of complicity, including the removal of ‘many of the unprincipled nuances [of those rules] which have so long rendered it impossible to explain this doctrine … in clear and simple terms’. One area of conceptual difficulty identified concerned the fault elements of the traditional forms of accessorial liability. 
68	The Weinberg report took as its starting point when considering this question Lord Goddard CJ’s well-worn statement in Johnson v Youden that before a person could be convicted of aiding and abetting the commission of an offence he (or she) had at least to know the essential matters constituting that offence. However, the Youden formulation left a number of questions unanswered:    
	[T]he common law speaks of ‘knowledge of the essential facts’ of an offence as being a necessary element of both assisting and encouraging, and common purpose. That expression is, of course, somewhat opaque. It involves questions of fact and degree. Is it sufficient to establish that the accused is aware, in general terms, of the general nature of the offence that the principal offender is contemplating? Or must his knowledge be more detailed and specific than that?
69	The Weinberg report proposed a new model of accessorial liability centred on the phrase, which now appears in s 323 of the Crimes Act, ‘involved in the commission of the offence’. A provision was proposed to clarify when a person is ‘involved’ in the commission of an offence:
	[A] person is ‘involved’ in the commission of an offence if the person acts in any one of two ways, namely: 
(a)	intentionally assists, encourages, or brings about the commission of the offence or an offence of the same general character; or 
(b)	enters into an agreement, arrangement or understanding with another person to commit the offence (or an offence of the same general character).
70	Importantly, to give effect to the second form of liability, the Weinberg report recommended that what is now s 323(1)(c) be enacted:  
	This proposed subsection covers group activity in which an accused has entered ‘into an agreement, arrangement or understanding with another person to commit the offence or an offence of the same general character.’ It is, in truth, a ‘completed conspiracy offence’. That is to say that liability under this ground will be made out if a conspiracy has been proved which has resulted in the commission of the substantive offence which was the subject of the conspiracy.
	The fault element required for this mode of participation will be in line with that specified for traditional forms of accessorial liability in Giorgianni. That is because it seems implicit in the terms ‘agreement, arrangement or understanding’ that there must be a specific degree of knowledge, and intent, in order to fall within the notion of a conspiracy.
71	As the impugned convictions were based on the existence of an agreement between the co-offenders to commit the offences, the applicant was correct to point to the application of common law concepts, including the accessorial liability recognised by the High Court of Australia in Giorgianni. 
72	In Giorgianni, the appellant was convicted of six counts of culpable driving causing death or grievous bodily harm contrary to s 52A of the Crimes Act 1900 (NSW) after the brakes failed on a truck being driven by one of his employees, causing the employee to lose control and to collide with two other vehicles.  Five people were killed. The offence of culpable driving in s 52A was a strict liability offence.
73	While not present at the collision, the appellant was charged as a secondary participant pursuant to s 351 of the Crimes Act 1900 (NSW), on the basis that he had ‘procured’ his employee to drive the truck despite knowing of, or being reckless as to, the defective condition of its brakes. In the course of his charge to the jury, the trial judge explained that the prosecution had to show that the appellant ‘knew when he procured the use of the vehicle by [the employee] … the brakes were defective and could fail and could constitute driving in a manner dangerous to the public or he acted recklessly not caring whether the facts existed or not’.  The issue before the High Court was whether these directions were correct, and, in particular, whether they accurately conveyed the requisite mental element.  
74	Gibbs CJ held that although s 52A did not require the driver to have a given state of mind, this did not mean that a person could aid, abet, counsel or procure the commission of the charged offence ‘without having an intention to do so formed in light of the knowledge of the facts’.  Recklessness was insufficient.  This was said to follow from the ordinary language of s 351, construed in light of the common law. After surveying a number of authorities (including Youden and decisions that followed it) the Chief Justice summed up the law as follows:
	No one may be convicted of aiding, abetting, counselling or procuring the commission of an offence unless, knowing all the essential facts which made what was done a crime, he intentionally aided, abetted, counselled or procured the acts of the principal offender. Wilful blindness … is treated as equivalent to knowledge but neither negligence nor recklessness is sufficient.
75	Mason J took a similar view. His Honour held that s 351 had to be construed in light of the common law doctrine of secondary participation: 
	The application of the doctrine … to statutory offences involving no mental element has been considered in a number of cases. In general, the absence of intention as an element of the substantive offence has not been regarded as obviating the necessity for knowledge on the part of the secondary party of the essential facts constituting the offence. The ‘link in purpose’ between the secondary party and the principal offender is not established where a person does something to bring about, or render more likely, the commission of an offence by another in circumstances in which, through ignorance of the facts, it appears to him to be an innocent act.
76	The majority (Wilson, Deane and Dawson JJ) adopted broadly the same approach, finding that an actual intention to procure the relevant offence, based on knowledge of the essential facts, was needed. Intent, for these purposes, did not encompass recklessness:
	For the purposes of many offences it may be true to say that if an act is done with foresight of its probable consequences, there is sufficient intent in law even if such intent may more properly be described as a form of recklessness. There are, however, offences in which it is not possible to speak of recklessness as constituting a sufficient intent. Attempt is one and conspiracy is another. And we think the offences of aiding and abetting and counselling and procuring are others. Those offences require intentional participation in a crime by lending assistance or encouragement. They do not, of course, require knowledge of the law and it is necessary to distinguish between knowledge of or belief in the existence of facts which constitute a criminal offence and knowledge or belief that those facts are made a criminal offence under the law. The necessary intent is absent if the person alleged to be a secondary participant does not know or believe that what he is assisting or encouraging is something which goes to make up the facts which constitute the commission of the relevant criminal offence. He need not recognize the criminal offence as such, but his participation must be intentional aimed at the commission of the acts which constitute it. … Intent is required and it is an intent which must be based upon knowledge or belief of the necessary facts.
77	More recently in LK, the High Court considered the offence of conspiracy to commit an offence in the context of s 400.3(2) of the Criminal Code (Cth), which provided that a person was guilty of an offence if the person dealt with money of $1,000,000 in value or more and the money was proceeds of crime, and the person was reckless as to the fact that the money was proceeds of crime. Section 5.6(1) of the Criminal Code provided that the default fault element for the offence of conspiracy was intention. The Crown did not allege that the accused knew or believed that the money was the proceeds of crime. On the Crown’s case, the agreement between them may not have involved a dealing with money that was the proceeds of crime, and it was not open to find that either accused had intentionally entered into an agreement to commit the offence.
78	The trial judge directed the jury to acquit the accused on the charge that they had conspired to deal with money that was proceeds of crime while being reckless as to the fact that the money was the proceeds of crime. The trial judge ruled that, on the case the Crown presented, the charge was bad because an accused must know all the facts that would make his or her conduct criminal. 
79	A Crown appeal to the New South Wales Court of Criminal Appeal was dismissed, as was a further Crown appeal to the High Court. The High Court held that the judge’s direction was correct. The fault element of the offence of conspiracy was intention, and proof of intention to commit an offence required proof of the accused’s knowledge of, or belief in, the facts that made the proposed conduct an offence. French CJ said:
	The charge of conspiracy to commit an offence, which is created by s 11.5(1) of the Code, requires proof of an agreement between the person charged and one or more other persons. Moreover, the person charged and at least one other person must have intended that the offence the subject of the conspiracy would be committed pursuant to the agreement. Intention to commit an offence can be taken to encompass all the elements of the offence … That intention extends to both physical and fault elements of the substantive offence.
80	For their part the majority (Gummow, Hayne, Crennan, Kiefel and Bell JJ) said:
	The offence of conspiracy under the Code is confined to agreements that an offence be committed. A person who conspires with another to commit an offence is guilty of conspiring to commit that offence. It was incumbent on the prosecution to prove that LK and RK intentionally entered an agreement to commit the offence that it averred was the subject of the conspiracy. This required proof that each meant to enter into an agreement to commit that offence. As a matter of ordinary English it may be thought that a person does not agree to commit an offence without knowledge of, or belief in, the existence of the facts that make the conduct that is the subject of the agreement an offence (as distinct from having knowledge of, or belief in, the legal characterisation of the conduct). This is consistent with authority with respect to liability for the offence of conspiracy under the common law.
81	Having regard to the way in which the case against the accused persons was advanced, the majority held that it was not open to find that either of the respondents intentionally entered into an agreement to commit the offence that was said to have been the object of the conspiracy:
	The prosecution case at its highest was that the respondents intentionally entered an agreement to deal with money whether or not it was proceeds of crime. The matters upon which the appellant relies as providing the factual basis for the inference of intent, namely the respondents’ awareness that the money may be proceeds of crime and their agreement to deal with it even if it was, expose the flaw in the analysis. At the time the agreement was made the money may, or may not, have been (or have become) proceeds of crime.  The agreement, if carried out in accordance with LK’s and RK’s intention, may not have involved a dealing with money that is proceeds of crime.
82	In the present case, the prosecution bore the onus of establishing that the offenders intentionally entered into an agreement to commit the offences with which they were charged.  The authorities make it clear that an intention to commit an offence requires proof of the accused’s knowledge of, or belief in, the facts that make the proposed conduct an offence. That Daisy was under 12 was a critical fact making the proposed conduct an offence under s 49A of the Crimes Act.  That both Daisy and Katie were under 18 was a critical fact that made the proposed conduct an offence under s 71B of the Drugs, Poisons and Controlled Substances Act. Without knowledge of those specific facts, the co-offenders would not have been agreeing to commit a crime, let alone the particular crimes with which they were charged on a complicity basis.
83	On the basis of the authority to which we have referred, it is clear that the prosecution bore an onus to prove that the applicant knew Daisy was under 12 when he agreed with his co-offenders that they would sexually penetrate her and that both Daisy and Katie were under 18 when he agreed with his co-offenders to supply them with drugs. 
84	The onus borne by the prosecution was not discharged, the prosecution having formed the view that it was unnecessary to do so. The jury was not directed that it had to be satisfied that the applicant had the requisite knowledge. To the contrary, it was instructed that it needed only to be satisfied that the complainants were underage. Accordingly, the jury was not entitled to convict the applicant of the complicity charges.  The fact that counsel for the applicant (the defendant at trial) did not object to the course taken by the prosecution, and in fact agreed with it, is unfortunate but of no moment, in our opinion.  The jury convicted the applicant of the complicity charges based on a misdirection about the burden borne proof by the prosecution, and the applicant has suffered a substantial miscarriage of justice.
85	The convictions on charges 1 to 3 and 7 to 9 and the sentence imposed will be set aside. A new trial will be ordered in relation to those charges.  The applicant will be resentenced on the convictions that remain.
RESENTENCE
86	The applicant stands convicted of charges 4, 5, 6, 13 and 14. This involves three convictions for sexual penetration of a child under 12 and two convictions for sexual assault of a child under 16.  
87	In resentencing the applicant on charges 4, 5, 6, 13 and 14, we take into account all factors that were before the sentencing judge. 
88	We agree with the sentencing judge that these offences were at least mid-range examples of what are very serious offences. Although occurring over a single evening, the offending was planned, and involved the use of drugs and alcohol to render vulnerable victims even more pliable and exposed. It occurred late at night, while the complainants were far from where they lived and had no means of getting away from the three predatory men who had set about sexually abusing and demeaning them. At one point (at least), Daisy was crying and calling out for help. The applicant can have been under no illusion that Daisy was a willing participant in the sexual activity. He and his friends treated Daisy like a piece of meat. Their conduct was disgusting. They not only failed to protect a vulnerable young girl, but exploited that vulnerability for their own sexual gratification. In so doing, they exposed an 11-year-old child to the risk of pregnancy and sexually transmitted diseases.
89	The seriousness of the applicant’s sexual offending is reflected in the maximum sentence of 25 years’ imprisonment and in the special sentencing regime that applies to offending of this type. Sexual penetration of a child under 12 is a special type of offence which requires the imposition of a custodial sentence.  It has a standard sentence of 10 years. Sexual assault of a child under 16 has a standard sentence of 4 years. The applicant stands to be sentenced as a serious sexual offender in respect of charges 6, 13 and 14. This gives rise to a statutory presumption of cumulation of the individual sentences and requires the sentencing court to consider the protection of the community from the applicant as the principal sentencing purpose. The Court may impose a disproportionate sentence to achieve that purpose.
90	However, in resentencing the applicant, we also had regard to the applicant’s traumatic background and the fact that he suffers from a cognitive impairment. As Rohingya Muslims, his family was forced to flee Myanmar. They lived for a number of years in Malaysia as stateless persons, before travelling by boat to Australia, where they spent several months in immigration detention on Christmas Island, and then in Darwin, before obtaining bridging visas and relocating to Melbourne. 
91	As to the applicant’s intellectual deficit, we have had regard to the expert reports tendered on the plea, the first by clinical psychologist Ms Alice Crole and the second by neuropsychologist, Dr Rachel O’Meara. Ms Crole reported that the applicant impressed as ‘naïve and cognitively, psychologically and emotionally immature for his stated age’.  He was a poor historian, struggled to comprehend simple concepts even through an interpreter, and did not appear to understand the gravity of his situation. She referred to the applicant as having ‘a possible cognitive impairment’ and recommended neuropsychological testing. That testing was performed by Dr O’Meara. Dr O’Meara reported that the applicant’s cultural and linguistically diverse background and limited education prevented full testing, which hampered diagnosis. However, Dr O’Meara noted that various task performances suggested global cognitive impairment not explicable by cultural, language and educational factors alone. This reflected a long-standing and permanent neurodevelopmental condition associated with complications at birth. Dr O’Meara considered the applicant’s cognitive functioning to be at the level of a mild intellectual disability.
92	Nonetheless, Dr O’Meara recorded that despite his cognitive impairment, the applicant demonstrated a reasonable ability to cope in his everyday functioning, such that he had been able to maintain employment, successfully live with friends (without close support from his family) and independently carry out the activities of daily living.
93	Although we accept that the applicant’s level of cognitive function has some bearing on his moral culpability and is relevant to his sentence in a general way, in the absence of evidence as to how his cognitive deficits related to his offending, they do not carry significant mitigatory weight. This is especially so given the applicant’s apparently reasonable adaptive functioning and his appreciation of the wrongfulness of his conduct. As the sentencing judge observed, he played a major role in the events of the night, and his moral culpability was high.
94	We have also taken into account the time that the applicant spent in immigration detention prior to his trial. After his arrest, he was remanded in custody and his bridging visa was cancelled. He was bailed to reside in immigration detention, where he remained for 731 days until verdict, when he was again remanded in custody. As the sentencing judge observed, this form of detention does not constitute pre-sentence detention to be deducted from the applicant’s sentence in the same way as days spent on remand. However, the sentence imposed should reflect the fact that the applicant was deprived of his liberty for a very lengthy period prior to the commencement of his sentence. 
95	We take into account the factors in mitigation that were accepted by the sentencing judge. In particular, the applicant has no prior convictions and is entitled to be sentenced as a person of otherwise good character. His prospects of rehabilitation are reasonable. We have also considered the burden of imprisonment in terms of isolation from family, the effect of the pandemic and Dr O’Meara’s opinion that prison would be harder on the applicant because of his cognitive deficits and language difficulties.
96	In all of the circumstances, the applicant will be resentenced as follows:
(a)	Charge 4:  		7 years’ imprisonment
(b)	Charge 5: 		3 years’ imprisonment
(c)	Charge 6: 		7 years’ imprisonment
(d)	Charge 13: 		7 years’ imprisonment
(e)	Charge 14:		3 years’ imprisonment
97	The sentence of 7 years on charge 4 will be the base sentence.  Three months will be cumulated on each of the sentences on charges 5 and 14; six months will be cumulated on each of the sentences on charges 6 and 13.  
98	The applicant will be sentenced to a period of imprisonment of 8 years and 6 months, with a non-parole period of 5 years and 3 months.
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