AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
1
Court of Criminal Appeal 16 December 2005

R v BJB

[2005] NSWCCA 441

Sexual offences
CRIMINAL LAW APPEAL AGAINST CONVICTION AND SENTENCE FORM OF INDICTMENT WHETHER UNREASONABLE VERDICT ERROR IN MAXIMUM PENALTY

Citation: R v BJB [2005] NSWCCA 441
Court: Court of Criminal Appeal, New South Wales
Date: 16 December 2005
Judge(s): McClellan CJ at CL, Hislop J, Rothman J

Background

The appellant (identified only by initials due to a statutory suppression order, as he was 17 at the time of the alleged offences) was convicted in the District Court of sexual offences committed in 1970. The charges included one count of indecent assault on a victim under 16 years of age and two counts of buggery, all under the Crimes Act 1900 as it stood in 1970. He was acquitted on a fourth count.

The appellant appealed both his conviction and the sentences imposed by the sentencing judge. The appeal raised several grounds, including alleged defects in the form of the indictment, whether the jury's verdicts were unreasonable, concerns about corroborative witnesses, the apparent inconsistency between the acquittal on the fourth count and the convictions on the others, and an error in the maximum penalty applied on Count 1.

  • Whether the form of the indictment was defective
  • Whether the jury's verdicts of conviction were unreasonable or unsupported by the evidence, applying the principles in M v The Queen and MFA v R
  • Whether the appellant's decision not to give evidence at trial gave rise to any ground of appeal
  • Whether the acquittal on the fourth count was inconsistent with the convictions on the remaining counts
  • Whether the sentencing judge applied an incorrect maximum penalty when sentencing on Count 1, and whether this vitiated the sentence

Decision

The Court dismissed the challenge to the form of the indictment, finding that an indictment must by its nature allege that an offence has been committed, and no error arose in that regard.

On the conviction appeal, the Court applied the test in M v The Queen as elaborated in MFA v R: the question is whether it was open to the jury, acting reasonably and on the whole of the evidence, to be satisfied beyond reasonable doubt of the appellant's guilt. The jury accepted the complainant's evidence notwithstanding the appellant's denials (which appeared in his record of interview, since he did not testify). The Court found no basis to interfere. The appellant's decision not to give evidence was characterised as a deliberate forensic choice made after appropriate legal advice, and was not a ground of appeal. The Court also rejected arguments based on corroborative witnesses and the alleged inconsistency of the verdict.

On sentence, the Court identified a material error: the sentencing judge had applied a maximum penalty of six years' penal servitude for Count 1 when the actual maximum under the 1970 legislation was five years. The sentence imposed for Count 1 was the incorrectly stated maximum. The Court corrected this error by resentencing on Count 1 to maintain the relationship between the sentence and the true maximum that the sentencing judge had apparently intended. The Court declined to alter the total effective sentence on the other counts, noting it was not minded to increase the overall sentence in the absence of a Crown appeal, even though Rothman J observed that the sentences for Counts 2 and 3 appeared light given their respective maximum penalties.

Orders Made

  • Extension of time to file the appeal and application for leave to appeal granted
  • Appeal against conviction dismissed
  • Leave to appeal against sentence granted
  • Appeal against sentence upheld in relation to Count 1 only; otherwise dismissed
  • Sentence on Count 1 quashed and replaced with four years' imprisonment commencing 16 April 2004 and expiring 15 April 2008, with a non-parole period of three years expiring 15 April 2007

Key Takeaways

  • The Court of Criminal Appeal confirmed that the applicable test on an unreasonable verdict ground is whether it was open to the jury, on the whole of the evidence and applying the criminal standard, to be satisfied of guilt, with full weight given to the jury's advantage of seeing and hearing witnesses.
  • A deliberate forensic decision by an accused not to give evidence, made on advice and for apparent tactical reasons, does not itself constitute a ground of appeal against conviction.
  • Where a sentencing court applies an incorrect maximum penalty and imposes what it believes to be the maximum (but which exceeds the true statutory maximum), the sentence is properly corrected on appeal to reflect the true maximum and the sentencing judge's apparent intention.
  • In the absence of a Crown appeal against sentence, the Court of Criminal Appeal will not increase an overall effective sentence even if it considers the total punishment to be inadequate.
  • Suppression obligations attaching to the identity of an offender who was a juvenile at the time of the offence apply regardless of when the proceedings are brought.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), including ss 76 and 79 as they existed in 1970
- Criminal Appeal Act (NSW), s 6(1)
- Crimes (Sentencing Procedure) Act (NSW), s 21A(2)

Cases:
- M v The Queen (1994) 181 CLR 487
- MFA v R (2002) 213 CLR 606
- R v Habib [2005] NSWCCA 223
- Jones v The Queen (1997) 191 CLR 439
- Chamberlain v The Queen (No 2) (1984) 153 CLR 521
- Darling Island Stevedoring Lighterage Co Ltd v Jacobsen (1945) 70 CLR 635
- R v R (1989) 18 NSWLR 74
- Swain v Waverley Municipal Council (2005) 79 ALJR 565