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Court of Criminal Appeal 6 September 2001

R v RAP

[2001] NSWCCA 471

Sexual offences
APPEAL AGAINST CONVICTION APPLICATION FOR EXTENSION OF TIME SEXUAL ASSAULT MANIFEST EXCESSIVENESS SUBJECTIVE MATTERS SPECIAL CIRCUMSTANCES

Citation: R v RAP [2001] NSWCCA 471
Court: NSW Court of Criminal Appeal
Date: 6 September 2001
Judge(s): Hodgson JA, Dowd J, Smart AJ

Background

The appellant was convicted by jury in the District Court of sexual intercourse with a child under 16 years of age, an offence under section 61J of the Crimes Act 1900. The victim was a three-year-old child, the daughter of the appellant's sister. The offence was alleged to have occurred during a motorcycle ride the appellant took with the child, lasting approximately 20 minutes.

On the child's return, she was visibly distressed. Her mother found blood on her underwear and visible injuries to her genital area. Medical examination the same day recorded significant injuries consistent with sexual assault, and DNA analysis of semen samples connected to the appellant matched material taken from the victim's clothing and body.

The appellant was sentenced by Knight DCJ to imprisonment for eight years and 201 days, with a non-parole period of five years and 18 days, taking into account 164 days of pre-sentence custody. The appellant challenged both the conviction and the severity of the sentence on appeal.

  • Whether the jury's guilty verdict was unreasonable or unsupported by the evidence, particularly as to the element of penetration
  • Whether the sentence imposed was manifestly excessive
  • Whether the sentencing judge erred by failing to account for the conditions of strict protection custody in which the appellant would serve his sentence

Decision

The Court of Criminal Appeal dismissed the appeal against conviction. The court considered the evidence of penetration, which rested primarily on Dr MacDonald's medical observations, alongside the DNA and forensic evidence. The court was satisfied the jury's verdict was reasonable and supported by the evidence.

On sentence, the Crown conceded error in the sentencing judge's failure to take into account that the appellant would be serving his sentence in strict protection, a more onerous form of custody. The court accepted that this omission warranted intervention.

The court also considered relevant subjective matters. These included the appellant's age (25 at the time of sentencing), his difficult childhood, and evidence that he had himself been the victim of repeated sexual abuse as a child. The court acknowledged that these factors, combined with the appellant's ongoing psychological difficulties and his failure to accept responsibility for the offence, had implications for his likely experience in custody and his prospects before the Parole Board.

The court found that a reduced sentence was appropriate, reflecting both the conceded error and the relevant subjective circumstances. It noted that the appellant's unwillingness to acknowledge the offence might well result in him remaining in custody beyond the expiry of his non-parole period in any event, a factor that informed the court's approach to special circumstances and the ratio between the non-parole period and the total sentence.

Orders Made

  • Appeal against conviction dismissed
  • Leave to appeal against sentence granted
  • Appeal against sentence allowed and original sentence quashed
  • Appellant re-sentenced to imprisonment for 7 years and 201 days, commencing 12 April 2000 and expiring 29 October 2007, with a non-parole period of 4 years and 201 days, commencing 12 April 2000 and expiring 29 October 2004

Key Takeaways

  • The Court of Criminal Appeal confirmed that a jury verdict based substantially on medical and forensic evidence will not be disturbed on appeal merely because the defence challenges the interpretation of that evidence.
  • A sentencing court's failure to account for the more burdensome conditions of strict protection custody constitutes a sentencing error capable of warranting appellate intervention.
  • Where an appellant is serving a sentence in strict protection, that circumstance is a relevant factor when assessing the overall weight of the custodial penalty.
  • Special circumstances may be found where evidence indicates that a longer period of post-release supervision is warranted to assist an offender with significant psychological difficulties, even where actual early release on parole remains uncertain.
  • Subjective factors, including a history of being a victim of childhood sexual abuse, are relevant to re-sentencing, but do not diminish the objective seriousness of offending against a very young child.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 61J, 61M(2)

Cases:
- AB (1999) 73 ALJR 1385
- Jones v R (1997) 191 CLR 439
- M v R (1994) 181 CLR 487
- R v Howard [2001] NSWCCA 309