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Court of Criminal Appeal 26 October 2006

Dean v R

[2006] NSWCCA 341

Also reported as 166 A Crim R 341
Sexual offences
CRIMINAL LAW SEXUAL ASSAULT APPEAL AGAINST CONVICTION APPEAL AGAINST SENTENCE DIRECTIONS TO JURY WHETHER MISDIRECTION

Citation: Dean v R [2006] NSWCCA 341
Court: NSW Court of Criminal Appeal
Date: 26 October 2006
Judge(s): Tobias JA; Grove J; Bell J

Background

The appellant was convicted in the District Court at Orange of sexual intercourse without consent under s 61I of the Crimes Act 1900 (NSW). The offence occurred in the early hours of 25 September 2004, when the complainant, the adult daughter of the appellant's de facto partner, awoke in the second bedroom of the flat to find the appellant penetrating her from behind. DNA evidence confirmed the appellant's semen was found on the complainant, and she made immediate complaint on leaving the flat.

At trial, the appellant initially denied any intercourse. By the time of the trial itself, he changed his account and claimed the encounter was consensual and initiated by the complainant. The jury rejected his evidence entirely and returned a guilty verdict on 13 April 2005.

Finnane DCJ sentenced the appellant to a total term of ten years' imprisonment, comprising a seven-year non-parole period and an additional term of three years. The appellant challenged both the conviction and the sentence before the Court of Criminal Appeal.

  • Whether the trial judge's summing-up to the jury reversed the onus of proof on the critical issue of consent, constituting a misdirection
  • Whether the misdirection, if established, warranted a new trial
  • Whether the sentence was excessive, including whether the trial judge impermissibly used the appellant's plea of not guilty as an aggravating factor
  • Whether any sentencing error was rendered irrelevant by the operation of the standard non-parole period regime under the Crimes (Sentencing Procedure) Act 1999

Decision

Conviction appeal dismissed. The sole ground of appeal against conviction was that the trial judge had reversed the onus of proof in his directions to the jury concerning consent. This ground required leave because trial counsel raised no objection at the time and sought no alternative directions. The Court examined the summing-up and the written document provided to the jury, and found no misdirection that displaced the prosecution's burden of proof. The appeal against conviction was dismissed.

Sentencing error identified, but partially rendered irrelevant. The Court found that Finnane DCJ had impermissibly taken the appellant's plea of not guilty into account as an aggravating factor, on the basis that the complainant had been required to testify and face what were found to be false allegations. This approach was inconsistent with the principle established in Siganto v The Queen (1998) 194 CLR 656, which holds that a plea of not guilty cannot itself be treated as an aggravating circumstance.

Standard non-parole period absorbed the error. The offence was accepted as falling within the mid-range of objective seriousness, which attracted the standard non-parole period under the relevant provisions of the Crimes (Sentencing Procedure) Act 1999. Because no departure upward from that standard period had been made, and no mitigating factors warranted a reduction, the erroneous aggravating finding had no practical effect on the quantum of the non-parole period ultimately imposed. Grove J and Bell J each noted the seemingly anomalous result: an express reference to an impermissible aggravating factor can become legally irrelevant where the standard non-parole period has not been inflated as a consequence.

Sentence varied on a different basis. Leave to appeal against sentence was granted and the appeal was allowed in part. The Court quashed the original sentence and re-sentenced the appellant, maintaining the seven-year non-parole period but adjusting the commencement date and reducing the additional term, producing a total sentence of nine years and four months rather than ten years.

Orders Made

  • Appeal against conviction dismissed
  • Leave to appeal against sentence granted; appeal allowed in part
  • Original sentence quashed
  • Appellant re-sentenced for the offence of sexual intercourse without consent (s 61I, Crimes Act 1900): non-parole period of seven years commencing 27 February 2005 and expiring 26 February 2012; balance of term of two years and four months commencing 27 February 2012 and expiring 26 June 2014
  • Earliest eligible release date: 28 February 2012

Key Takeaways

  • In dismissing the conviction appeal, the Court of Criminal Appeal confirmed that an appellant who raises a complaint about jury directions for the first time on appeal, without objection at trial, must obtain leave and faces a high threshold to establish appealable error.
  • A sentencing court cannot treat a plea of not guilty as an aggravating factor on the basis that it compelled the complainant to testify, consistent with the High Court's position in Siganto v The Queen.
  • Where the standard non-parole period regime applies and no upward departure from the standard period has occurred, an erroneous finding of an aggravating factor may be rendered legally irrelevant, even if expressly recorded in the sentencing remarks.
  • The standard non-parole period is triggered when the offence is assessed as falling within the mid-range of objective seriousness; once that threshold is reached and no departure is made in either direction, individual errors in the identification of aggravating circumstances carry no weight on appeal.
  • No error was established in the trial judge's finding that the offence fell within the mid-range of objective seriousness, a concession the appellant's own counsel made on the sentence appeal.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 61I (sexual intercourse without consent)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 44, 54A, 54B, 54D; Pt 4 Div 1A (standard non-parole periods)
- Criminal Appeal Act 1912 (NSW), s 6(3)

Cases:
- R v Way (2004) 60 NSWLR 168
- Ryan v The Queen (2001) 206 CLR 267
- Siganto v The Queen (1998) 194 CLR 656
- Thomas v The Queen (1960) 102 CLR 584