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Court of Criminal Appeal 16 November 2006

FRENCH v REGINA

[2006] NSWCCA 361

Sexual offencesAssault & violence
CRIMINAL LAW SEXUAL INTERCOURSE WITHOUT CONSENT COMMON ASSAULT ASSAULT OCCASIONING ACTUAL BODILY HARM LEAVE TO WITHDRAW PLEA OF GUILTY MISCARRIAGE OF JUSTICE

Citation: French v Regina [2006] NSWCCA 361
Court: NSW Court of Criminal Appeal
Date: 16 November 2006
Judge(s): McClellan CJ at CL, Adams J, Latham J

Background

The appellant pleaded guilty in the District Court to fifteen counts of sexual offences arising from two videotaped incidents. The offences included administering a stupefying drug with intent to have sexual intercourse without consent, multiple counts of sexual intercourse without consent, common assault, and assault occasioning actual bodily harm. The victim appeared to be either unconscious or semi-conscious throughout most of the recorded conduct.

On 13 May 2005, the sentencing judge imposed an overall sentence of fourteen years with an effective non-parole period of ten years. The appellant subsequently sought to challenge both his conviction and his sentence.

On appeal, the appellant argued that his guilty pleas were not attributable to a genuine consciousness of guilt, rendering the convictions a miscarriage of justice. In the alternative, he submitted that the overall sentence was manifestly excessive. By the time of the hearing, the challenge was expanded to cover all fifteen pleas.

  • Whether the appellant's guilty pleas were attributable to a genuine consciousness of guilt, or whether they constituted a miscarriage of justice entitling him to withdraw those pleas
  • Whether there was any threat to withdraw legal aid that improperly induced the pleas
  • Whether the appellant was fit to plead at the time he entered his pleas
  • Whether the overall sentence of fourteen years with a ten-year non-parole period was manifestly excessive

Decision

The Court examined the appellant's contention that his pleas were not genuinely voluntary. The appellant pointed to the procedural history surrounding the arraignment and the arrangements made between prosecution and defence counsel concerning the charges. The Court found no sufficient basis to conclude that the pleas were not attributable to a genuine consciousness of guilt, and rejected the claim that a threat to withdraw legal aid had influenced the pleas.

On the question of fitness to plead, the Court found no evidence to support the contention that the appellant lacked the fitness required at the time of his pleas. This ground of the conviction appeal accordingly failed.

Turning to sentence, the Court acknowledged that the overall effective sentence was heavy. Referring to comparable cases, the Court observed that individual sentences could serve only as a signpost rather than a definitive range, and that consistency remained an aspiration that must yield to the particular facts of each case. Although the sentence was at the heavier end, the Court was not prepared to find it manifestly excessive.

The Court unanimously dismissed the appeal, with Adams J delivering the principal judgment and McClellan CJ at CL and Latham J agreeing.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • A guilty plea will only constitute a miscarriage of justice warranting leave to withdraw where it is not attributable to a genuine consciousness of guilt; procedural pressures or arrangements between counsel do not automatically satisfy that test.
  • No evidence of a threat to withdraw legal aid was found sufficient to undermine the voluntariness of the pleas in this case.
  • Where a victim appears unconscious or semi-conscious, the relevant question for sexual offence charges is not whether she was rendered fully insensible, but whether her functions were sufficiently impaired that she did not give free and voluntary consent (citing R v TA (2003) 57 NSWLR 444).
  • In dismissing the sentence appeal, the Court of Criminal Appeal confirmed that the search for consistency in sentencing is necessarily aspirational and must give way to the particular facts of each case.
  • A sentence at the heavier end of what comparable cases suggest will not be set aside unless it crosses the threshold of manifest excess; heavy alone is insufficient.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW)
- Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases:
- R v Davies (unreported, NSWCCA, 16 December 1993)
- R v Forde (1923) 2 KB 400
- R v Guider [2002] NSWSC 756
- R v Moffitt [2002] NSWCCA 73
- R v Sagiv (1986) 22 A Crim R 73
- R v TA (2003) 57 NSWLR 444