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Court of Criminal Appeal 13 December 2006

Edmund James Turnell v Regina

[2006] NSWCCA 399

Sexual offencesAssault & violence

Citation: Edmund James Turnell v Regina [2006] NSWCCA 399
Court: NSW Court of Criminal Appeal
Date: 13 December 2006
Judge(s): Sully J (primary judgment); Hidden J and Latham J (agreeing)

Background

The appellant was tried in the District Court before Finnane DCJ and a jury on an indictment containing five counts arising from an incident at a Glebe flat on 21 February 2003. The complainant was the appellant's former de facto partner, with whom he had been living after the relationship ended. The Crown case relied on the complainant's evidence, medical evidence of injuries, DNA evidence, out-of-court admissions attributed to the appellant, and evidence of contemporaneous complaint.

The jury acquitted the appellant on the charge of assault under s 61 of the Crimes Act 1900 (NSW) (Count 1) and on the aggravated sexual assault charge under s 61J (Count 4 as charged). However, the jury found him guilty of assault occasioning actual bodily harm (Count 2), assault with an act of indecency (Count 3), the alternative offence of sexual intercourse without consent under s 61I (Count 4), and a further assault under s 61 (Count 5).

At first instance, the appellant received a total sentence of 8 years' imprisonment for the s 61I offence, with a non-parole period of 5 years commencing 24 August 2005. He appealed all four convictions and sought leave to appeal the sentence on Count 4, the only sentence that had not expired by the time of the appeal.

  • Whether the trial miscarried because of the Crown's cross-examination of the appellant about alleged discrepancies between his evidence at trial and matters his counsel had put to Crown witnesses (raising issues relating to the rule in Browne v Dunn)
  • Whether the trial judge's directions to the jury about those alleged discrepancies were inadequate
  • Whether the sentence of 8 years' imprisonment (with a 5-year non-parole period) for the s 61I offence was manifestly excessive, having regard to the standard non-parole period of 7 years and the finding of special circumstances

Decision

Conviction appeal dismissed. The Court rejected both grounds relating to the conduct of the trial. The cross-examination by the Crown and the trial judge's directions were found not to have produced a miscarriage of justice. The convictions on all four counts were upheld.

Sentence appeal upheld. The Court granted leave to appeal the sentence on Count 4. Sully J concluded that the head sentence of 8 years fell outside the range of a sound sentencing discretion when the objective and subjective features of the case were properly weighed. The Court accepted that the sentencing judge had recognised the appellant's strong subjective case, but considered the overall sentence still exceeded what was appropriate.

An appropriate head sentence was assessed at 6 years. The standard non-parole period under the Crimes (Sentencing Procedure) Act 1999 (NSW) for a s 61I offence is 7 years, and the Court noted that reducing the non-parole period required careful calibration to avoid a result unreasonably disproportionate to that statutory benchmark. Special circumstances were found to justify setting the non-parole period at 4 years, representing a departure below the 75 per cent proportion that would ordinarily apply.

The Court also took into account, in the re-sentencing exercise, an affidavit from the appellant describing hardship during incarceration, including developing eyesight problems. Those matters were treated as relevant to re-sentencing but were not allowed to produce an outcome disproportionate to the standard non-parole period.

Orders Made

  • Appeal against conviction dismissed
  • Leave granted to appeal against the sentence on Count 4 of the indictment
  • Sentence on Count 4 quashed; appellant re-sentenced to imprisonment with a non-parole period of 4 years commencing 24 August 2005 and expiring 23 August 2009, with a balance of term of 2 years expiring 23 August 2011

Key Takeaways

  • In dismissing the conviction appeal, the Court of Criminal Appeal confirmed that cross-examination touching on alleged inconsistencies between defence counsel's conduct and the accused's own evidence did not automatically produce a miscarriage of justice.
  • A sentence for sexual intercourse without consent under s 61I of the Crimes Act 1900 (NSW) must be assessed in light of the statutory standard non-parole period of 7 years; departures below that benchmark require identifiable justification, such as a finding of special circumstances.
  • Where special circumstances are established, a court may set a non-parole period below the standard 75 per cent proportion, but must remain careful not to produce a non-parole period that is unreasonably disproportionate to the statutory standard minimum.
  • Post-sentencing hardship during incarceration, including health deterioration, is a relevant but not determinative factor in a re-sentencing exercise by an appellate court.
  • Sufficient objective and subjective material can support a reduction in a head sentence even where the sentencing judge expressly recognised mitigating factors, if the ultimate sentence still falls outside the range of a sound sentencing discretion.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 61, 59, 61L, 61I, 61J, 61Q(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), Division 4 Part 1A (standard non-parole period provisions)
- Criminal Appeal Act 1912 (NSW)

Cases:
- R v Abdallah (2001) 127 A Crim R 46
- Oldfield v Reg [2006] NSWCCA 219
- Browne v Dunn (the rule requiring a party to put to a witness any matter that will later be contradicted by that party's own evidence)
- Weiss v The Queen (2005) 158 A Crim R 133
- Cornwell v The Queen (2006) 160 A Crim R 243