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Court of Criminal Appeal 24 May 2006

Sharwood v Regina

[2006] NSWCCA 157

Sexual offences
CRIMINAL LAW APPEAL AGAINST CONVICTION POINT CONCEDED AT TRIAL RULE 4 OF CRIMINAL APPEAL RULES APPLICATION TO DISCHARGE JURY INCORRECT MAXIMUM PENALTY RELIED ON

Citation: Sharwood v Regina [2006] NSWCCA 157
Court: New South Wales Court of Criminal Appeal
Date: 24 May 2006
Judge(s): McClellan CJ at CL, Hoeben J, Johnson J

Background

The appellant was convicted by a jury in the District Court on five counts of aggravated indecent assault under s 61M(1) of the Crimes Act 1900. The complainant was a ten-year-old child who had been sleeping over at the appellant's home. The circumstances of the offending, which unfolded over approximately one hour during the night, are described in the judgment.

DNA evidence played a central role at trial. Analysts from the Department of Analytical Laboratories had produced the DNA profiles from items of the complainant's clothing, but those analysts were not called to give evidence. A forensic biologist who had not personally performed the testing gave opinion evidence about the results, and the admissibility of that evidence was contested at trial.

The appellant was sentenced to cumulative terms totalling approximately seven and a half years with a non-parole period of five years and four months. He appealed against both conviction and sentence.

  • Whether the failure to call the analysts who actually performed the DNA testing rendered the DNA evidence inadmissible or caused a substantial miscarriage of justice
  • Whether the trial judge erred in refusing an application to discharge the jury in connection with that evidence
  • Whether the sentencing judge applied an incorrect maximum penalty
  • Whether the sentencing judge characterised the offending as falling in the middle range of objective seriousness when it did not warrant that characterisation
  • Whether evidence of extra-curial punishment (hardship suffered outside the formal criminal justice system) was properly taken into account
  • Whether the principles of totality and proportionality were applied correctly to the accumulated sentences

Decision

Conviction appeal dismissed. The Court accepted that the four analysts who produced the DNA profiles were not called to give evidence, and that this point had been conceded at trial. However, the Court found that the concession had been made deliberately and that, applying Rule 4 of the Criminal Appeal Rules, the point could not be raised on appeal without leave. More fundamentally, the Court concluded there was no real risk of a substantial miscarriage of justice. The forensic biologist who gave expert opinion evidence about the DNA results had a sufficient basis to do so, and the overall evidence of the complainant was independently compelling.

Application to discharge the jury. The trial judge's refusal to discharge the jury was upheld. The Court found no error in that exercise of discretion, and no miscarriage arose from the continuation of the trial.

Sentence appeal allowed. The Court identified two significant errors at the sentencing stage. First, the sentencing judge had proceeded on the basis of an incorrect maximum penalty. Second, the judge characterised the offences as falling in the middle range of objective seriousness, a characterisation the Court of Criminal Appeal found was not warranted on the facts. These errors infected the overall sentencing exercise.

The Court also found that the sentencing judge had not given adequate weight to evidence of extra-curial punishment. The appellant had served his imprisonment in protective custody, which was more onerous than normal conditions, and the medical evidence established that his wife's serious illness would almost certainly deteriorate if he remained incarcerated. Together with the errors in objective assessment and accumulation, the Court concluded the overall sentences were excessive and outside the proper range of sentencing discretion. The sentences were quashed and substantially reduced.

Orders Made

  • Appeal against conviction dismissed
  • Leave to appeal against sentence granted and the sentence appeal allowed
  • Sentences imposed by Kinchington ADCJ on 17 December 2004 quashed
  • In lieu thereof, on counts 1, 2, 3, and 5: fixed terms of 9 months imprisonment, to be served concurrently, dating from 6 September 2004 (expiring 5 June 2005)
  • On count 4: non-parole period of 1 year and 3 weeks dating from 6 September 2004 (expiring 26 September 2005), with a balance of term of 11 months and 1 week (expiring 5 September 2006)
  • The appellant to be forthwith released on parole under s 50 of the Crimes (Sentencing Procedure) Act 1999 and placed under the supervision of the Probation and Parole Service

Key Takeaways

  • A deliberate forensic concession made at trial will ordinarily preclude an appellant from raising the same ground on appeal, absent leave under Rule 4 of the Criminal Appeal Rules, and only where there is a real risk of substantial miscarriage of justice will leave be granted.
  • Expert opinion evidence about DNA test results is not automatically inadmissible simply because the witness did not personally perform every step of the testing, provided the witness has a sufficient foundation for the opinions expressed.
  • Applying an incorrect maximum penalty at sentencing constitutes a material error that may vitiate the entire sentencing exercise and warrant intervention by an appellate court.
  • Evidence of extra-curial punishment, including the hardship of serving time in protective custody and the serious medical deterioration of a close family member, forms a legitimate and potentially significant consideration in the exercise of the sentencing discretion.
  • The principles of totality and proportionality require that accumulated sentences, when viewed as a whole, reflect the overall criminality of the conduct and do not produce a result that is disproportionate to that criminality.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 61M(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 54D, 50
- Criminal Appeal Act 1912 (NSW), s 18
- Evidence Act 1995 (NSW)
- Criminal Appeal Rules, Rule 4

Cases:
- Crofts v The Queen (1996) 186 CLR 427
- Makita (Australia) Pty Limited v Sprowles (2001) 52 NSWLR 705
- R v Daetz and Wilson (2003) 139 ACrimR 398
- R v Davies [2004] NSWCCA 319
- R v Edwards (1996) 90 ACrimR 510
- R v Kneebone (1999) 47 NSWLR 450
- R v Reynolds (CCA, unreported, 3 July 1992)
- R v SG [2003] NSWCCA 220
- R v Sing (2002) 54 NSWLR 31
- R v Way (2004) 60 NSWLR 168
- Siganto v The Queen (1998) 194 CLR 656
- Skipworth v Regina [2006] NSWCCA 37