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Court of Criminal Appeal 29 October 1999

Regina -v- White

[1999] NSWCCA 336

Sexual offences

Citation: Regina v White [1999] NSWCCA 336
Court: NSW Court of Criminal Appeal
Date: 29 October 1999
Judges: Wood CJ at CL, Ireland J, Kirby J

Background

The appellant stood trial in the Broken Hill District Court before Gibson DCJ and a jury on eight counts of sexual offending against three complainants. Two complainants were under sixteen years of age and one had just turned sixteen. The offences included administering a stupefying drug with intent to commit an indictable offence, sexual intercourse without consent, and acts of indecency. The trial judge ordered the charges relating to all three complainants be tried jointly, and no challenge was made to that joinder.

The jury returned guilty verdicts on six of the eight counts. On sentencing, the appellant received a series of accumulated fixed and minimum/additional terms, producing an overall minimum term of ten years and an additional term of two years. The sentencing judge found special circumstances warranted by the cumulative nature of the sentences and noted that the additional term, though less than the statutory one-third ratio, was sufficient given the appellant's age of sixty-four and limited prospects for rehabilitation.

The appellant appealed against conviction on grounds relating to the admissibility and use of coincidence evidence. His counsel also made brief submissions challenging the departure from the statutory sentencing ratio, even though that ground had not been formally included in the notice of appeal.

  • Whether evidence of related events across the three complainants was properly admitted and used under the coincidence rule in section 98 of the Evidence Act 1995
  • Whether the trial judge was required to give a further direction to the jury about the impermissible use of propensity evidence under section 97 of the Evidence Act 1995, in circumstances where no section 97 considerations arose at trial
  • Whether the sentencing judge erred in imposing an additional term that fell below the one-third ratio prescribed by section 5(2) of the Sentencing Act 1989

Decision

On the coincidence evidence grounds, the Court found that the trial judge had properly admitted evidence of related events under section 98 of the Evidence Act 1995. The use of common features across the offences, including the administration of stupefying drugs and other similar circumstances, was permissible as coincidence evidence. The Court was satisfied that the evidence was used appropriately within that framework.

The Court further held that no additional direction was required to address the impermissible use of propensity evidence under section 97. Because section 97 considerations did not arise in this trial, a direction warning against propensity reasoning was unnecessary and its absence did not constitute error.

On the sentencing ground, the Court confirmed that the statutory ratio in section 5(2) of the Sentencing Act 1989 constrains a sentencing judge only from setting an additional term exceeding one-third of the minimum term. It does not constrain the imposition of a lesser additional term. The sentencing judge's decision to impose a shorter additional term, given the appellant's age and poor rehabilitation prospects, was within the proper exercise of judicial discretion. No sentencing error was demonstrated.

Orders Made

  • Appeal against conviction dismissed
  • Leave to appeal against sentence granted and appeal dismissed

Key Takeaways

  • The coincidence rule under section 98 of the Evidence Act 1995 permits evidence of related events, such as the use of stupefying drugs across multiple incidents, to be admitted and considered where the charges are tried jointly.
  • Where section 97 propensity considerations do not arise in a trial, no additional jury direction about impermissible propensity reasoning is required. The absence of such a direction is not a ground for overturning a conviction.
  • Under section 5(2) of the Sentencing Act 1989, the one-third ratio operates as a ceiling on additional terms, not a floor. A sentencing judge retains full discretion to impose an additional term below that ratio.
  • In dismissing the sentence appeal, the Court of Criminal Appeal confirmed that an offender's advanced age and limited rehabilitation prospects are legitimate factors supporting a shorter additional term within cumulative sentencing structures.
  • No error was established in the sentencing judge's identification of special circumstances based solely on the cumulative nature of the sentences imposed.

Legislation and Cases Referenced

Legislation:
- Evidence Act 1995 (NSW), ss 97, 98
- Crimes Act 1900 (NSW), ss 38, 61J(1), 61L, 61N(1), 66C, 409B
- Sentencing Act 1989 (NSW), s 5(2)
- Criminal Appeal Act 1912 (NSW), s 6

Cases:
- R v AH (1997) 42 NSWLR 702
- B v The Queen (1992) 175 CLR 599
- Graham v The Queen (1998) 72 ALR 1491
- R v GDR (1994) 35 NSWLR 376