Citation: R v Shillingsworth [2003] NSWCCA 272
Court: NSW Court of Criminal Appeal
Date: 26 September 2003
Judges: Meagher JA, Sully J, Smart AJ
Background
The appellant was convicted in the District Court of breaking and entering a dwelling house, knowing persons were inside, and having sexual intercourse with the occupant without her consent. The offence occurred in the early hours of a March morning in Bourke, when the appellant entered the home of an acquaintance and her husband.
The Crown case was that the appellant, having been removed from the house earlier that evening while intoxicated, re-entered through an unlocked back door, proceeded to the main bedroom, and sexually assaulted the complainant while she lay beside her sleeping husband. The complainant immediately raised the alarm, and multiple witnesses observed her in a state of acute distress.
The appellant denied sexually assaulting the complainant. He claimed he had entered the house only to look for a cigarette and had merely looked into the bedroom before closing the door. Following conviction, the appellant challenged both the conviction on the basis of errors in the trial judge's summing-up, and the sentence of seven years imprisonment with a four-year non-parole period.
Legal Issues
- Whether the trial judge's summing-up adequately addressed inconsistencies in the complainant's evidence
- Whether the summing-up correctly directed the jury on the mental element required for the break and enter offence, specifically whether the appellant could have believed he had permission to enter the home
- Whether the evidence of the complainant's distress was properly handled in the summing-up
- Whether the sentence of seven years with a four-year non-parole period was manifestly excessive
Decision
Conviction appeal: mental element in break and enter
The Court rejected the argument that the appellant could reasonably have believed he had permission to enter the home. The front door had been locked after the appellant was escorted out, and the back door was closed. The Court found there was no proper basis for the jury to have concluded the appellant genuinely believed he was entering with consent, and any error in the summing-up on this point did not affect the outcome.
Conviction appeal: inconsistencies and evidence of distress
The Court found that the trial judge had adequately drawn the jury's attention to the inconsistencies in the complainant's evidence, including her differing accounts of her sleeping position and the positioning of the appellant during the assault. The summing-up properly identified and contextualised those inconsistencies for the jury's consideration.
The Court also found the trial judge's treatment of the evidence of complaint and distress was appropriate. Multiple witnesses, including the complainant's husband, an ambulance officer, and a police officer, each observed the complainant in a highly distressed and hysterical state immediately following the incident. The summing-up correctly directed the jury on how to use that evidence.
Sentence appeal
Leave to appeal was granted given the acknowledged difficulty of the sentencing exercise, but the appeal was dismissed. The sentencing judge had found special circumstances arising from the appellant's profoundly deprived background, chronic alcohol dependence, and the fact that this was his first sexual offence, which justified a longer additional term relative to the non-parole period. Notwithstanding those subjective features, the Court of Criminal Appeal found the head sentence of seven years was not open to criticism and a lesser sentence was not warranted in law.
Orders Made
- Appeal against conviction dismissed
- Leave to appeal against sentence granted
- Appeal against sentence dismissed
Key Takeaways
- A conviction for break, enter and sexual assault required the Crown to establish that the appellant knew persons were inside and that he knew the complainant was not consenting; the Court confirmed there was no viable factual foundation for a belief in permission to enter once the appellant had been physically removed and the doors closed.
- Inconsistencies in a complainant's evidence do not automatically constitute a ground of appeal where the trial judge has drawn those inconsistencies to the jury's attention in the summing-up.
- Evidence of immediate complaint and visible distress, observed by several independent witnesses, was properly used as circumstantial evidence supporting the complainant's account.
- In dismissing the sentence appeal, the Court of Criminal Appeal confirmed that special circumstances can be established through a combination of deprived background, untreated substance dependence, and the need for extended post-release supervision, even where the offender has a lengthy prior criminal record.
- Judicial Commission sentencing statistics were of limited assistance where no comparable data existed for the specific combination of offences charged, illustrating that statistics may have reduced weight in atypical cases.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), s 112(2) (aggravated break, enter and commit serious indictable offence)
Cases
- Palmer v The Queen (1998) 193 CLR 1
- R v Fernando (1992) 76 A Crim R 58
- R v RJC, NSWCCA, unreported, 1 October 1998
- Stone v R (1995) 84 A Crim R 278