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Court of Criminal Appeal 11 February 2003

Regina v Davidson

[2003] NSWCCA 11

Sexual offences
WHILE SENTENCES (10 YEARS WITH NPP OF 7 SENTENCES NOT EXCESSIVE.

Citation: Regina v Davidson [2003] NSWCCA 11
Court: New South Wales Court of Criminal Appeal
Date: 11 February 2003
Judge(s): Giles JA, Bell J, Smart AJ

Background

The appellant was convicted in the District Court on seven counts of sexual intercourse without consent, with the jury finding that he knew the complainant, a 16-year-old female, was not consenting. The offences all occurred during a single episode on or about 24 June 2000, when the appellant drove the complainant to a remote bushland location at night under the pretext of a cannabis transaction. He subjected her to repeated sexual assaults over an extended period before returning her to the area she had requested.

Freeman DCJ imposed concurrent sentences of 10 years imprisonment with a non-parole period of 7 and a half years on each count. The judge also took into account related offences of supplying and self-administering cannabis.

The appellant challenged both the conviction and the sentences. On conviction, he raised a series of complaints about the trial judge's directions to the jury, and also contended that the guilty verdicts were unreasonable. On sentence, he argued the penalties were excessive given the circumstances of the offending.

  • Whether the trial judge's directions on the accused's state of mind (that is, his knowledge that the complainant was not consenting) were adequate
  • Whether the directions regarding the accused's election not to give evidence were adequate
  • Whether the directions regarding the complainant's credibility were sufficient
  • Whether the guilty verdicts on all seven counts were unreasonable or could not be supported by the evidence
  • Whether the sentences of 10 years imprisonment were manifestly excessive

Decision

The Court dismissed all complaints about the trial judge's directions. Notably, experienced Senior Counsel who appeared at trial had not objected to the summing-up, sought no re-directions, and requested only one further direction, which was given. The Court of Criminal Appeal took this as a significant indication that the directions were regarded as satisfactory at the time. The appellant's attempt to reframe the basis of his case on appeal, departing from how it had been run at trial, was also rejected.

On the question of unreasonable verdicts, the Court found the verdicts were well supported by the evidence. The case had been run at trial on the basis that the appellant was either guilty of all offences or none. The complainant's account, detailing a prolonged and repeated series of assaults while she cried, protested, and repeatedly refused, provided a sufficient evidentiary foundation for the jury's conclusions.

On sentence, the Court acknowledged the penalties were stern but found they were justified by the objective seriousness of the conduct. The sentencing judge had identified a series of significant aggravating factors: the appellant had separated the complainant from her companions, made deliberate preparations, driven her to a remote and isolated location, and subjected her to repeated sexual assaults across two sessions over an extended period. The Court accepted the sentencing judge's characterisation of AH as being in a "hopeless and helpless situation." The absence of additional physical violence and the fact that the appellant eventually returned her did not render the sentences manifestly excessive.

Orders Made

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

Key Takeaways

  • A failure by experienced trial counsel to seek re-directions or raise objections to a summing-up carries significant weight when an appellant later attempts to impugn those directions on appeal.
  • No error was established in the trial judge's directions on the accused's state of mind, the accused's silence, or the complainant's credibility, particularly where the directions were not challenged at the time.
  • Where a case is run at trial on the basis of guilt on all counts or none, the jury's verdict of guilty on all counts is not rendered unreasonable simply because the appellant attempts to advance a different case on appeal.
  • Concurrent sentences of 10 years with a 7 and a half year non-parole period for seven counts of sexual assault were held not to be manifestly excessive where the offending involved deliberate planning, a vulnerable victim, a remote location, and repeated assaults over an extended period.
  • In dismissing the sentence appeal, the Court affirmed that the absence of additional physical violence beyond the sexual offences themselves does not automatically reduce the objective gravity of sustained, non-consensual sexual conduct.

Legislation and Cases Referenced

Cases:
- M v R (1994) 181 CLR 487
- Jones v The Queen (1997) 191 CLR
- MFA v The Queen [2002] HCA 53
- TKJW v The Queen [2002] HCA 46
- Festa v The Queen (2001) 76 ALJR 291

Legislation: The judgment references section 61I of the relevant New South Wales criminal legislation (sexual intercourse without consent), though no specific Act is named in the provided text.