Citation: Thorne v Regina [2007] NSWCCA 10
Court: New South Wales Court of Criminal Appeal
Date: 7 February 2007
Judge(s): Sully J, Howie J, Hall J (Howie J delivered the leading judgment; Sully and Hall JJ agreed)
Background
The appellant was convicted by jury in the District Court of three counts of sexual assault against his estranged wife, arising from a single incident on 20 November 2004 in Queanbeyan. The first count was aggravated sexual assault under s 61J of the Crimes Act 1900, where the circumstances of aggravation were the infliction of actual bodily harm immediately before the intercourse. The second and third counts were offences of sexual intercourse without consent under s 61I.
The trial judge, Maguire DCJ, sentenced the appellant to an overall term of imprisonment with a non-parole period of 10 years and a balance of term of 3 years and 4 months, commencing 29 November 2004.
The appellant appealed against both the conviction and the sentences. On the sentence appeal, fresh evidence in the form of a psychiatric report was sought to be admitted.
Legal Issues
- Whether the trial judge gave erroneous directions that improperly elevated neutral expert medical evidence and bolstered the complainant's credibility
- Whether the trial judge misdirected the jury on a question of fact
- Whether the trial judge erred in directing the jury that injuries to the complainant's wrists were capable of amounting to corroboration, and whether an adequate direction under R v Murray was given
- Whether the summing-up was unfair because it failed to adequately summarise the defence case
- Whether a psychiatric report should be admitted as fresh evidence on the sentence appeal
- Whether the appellant's mental condition at the time of offending was a relevant sentencing consideration
- Whether the sentences imposed should have been concurrent rather than cumulative, and whether the trial judge properly applied the standard non-parole period provisions
Decision
Conviction appeal dismissed. The Court of Criminal Appeal found no error in the trial judge's directions that warranted overturning the convictions. The grounds relating to the medical evidence, the corroboration direction, and the adequacy of the Murray direction were rejected. The Court also rejected the submission that the summing-up was unbalanced by reason of an inadequate summary of the defence case. The cumulative effect of the grounds did not establish a miscarriage of justice.
Sentence appeal allowed. The Court admitted the psychiatric report as fresh evidence relevant to the sentencing exercise. The report indicated the appellant remained at risk of suicide and required extensive treatment. The Court found the trial judge had failed to properly consider the standard non-parole period provisions, meaning the sentencing discretion had miscarried and the sentences required to be re-exercised from scratch.
Restructured sentences. The Court declined to substantially reduce the non-parole period, given the objective seriousness of three counts of sexual assault committed in a single incident involving violence, threats, and different forms of intercourse. The sentences were restructured so that the second and third counts ran partially cumulatively on the first. The Court found special circumstances existed in relation to the second and third counts by reason of that partial accumulation, justifying an extended balance of term to provide for the appellant's treatment needs on release.
Orders Made
- Appeal against conviction dismissed.
- Leave to appeal against sentence granted; appeal allowed; original sentences quashed.
- On the first count: non-parole period of 6 years from 29 November 2004, expiring 28 November 2010; balance of term of 3.5 years from 29 November 2010.
- On the second and third counts: non-parole period of 3.5 years from 29 November 2008, expiring 28 May 2012; balance of term of 3.5 years from 28 May 2012.
- Overall term of 11 years with an overall non-parole period of 7.5 years; earliest parole eligibility 28 May 2012.
Key Takeaways
- In dismissing the conviction appeal, the Court of Criminal Appeal confirmed that no individual ground, nor their cumulative effect, established an unfair trial or miscarriage of justice where the jury directions and summing-up were considered as a whole.
- A psychiatric or psychological report not before the sentencing court may be admitted as fresh evidence on a sentence appeal where it is relevant to the exercise of the sentencing discretion, including assessment of an offender's mental condition and rehabilitation needs.
- Failure by a sentencing judge to properly engage with the standard non-parole period provisions under the Crimes (Sentencing Procedure) Act 1999 constitutes an error that allows the appellate court to re-exercise the sentencing discretion afresh.
- Special circumstances justifying an extended balance of term can be found where sentences are partially accumulated, even if the offender's mental condition alone might not have sufficed to ground that finding.
- The objective seriousness of the offending remained the primary constraint on any moderation of the non-parole period, notwithstanding evidence of the appellant's psychological vulnerability at the time of the offences.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), ss 61I, 61J, 405AA
- Evidence Act 1995 (NSW), s 136
- Criminal Appeal Rules, Rule 4
- Criminal Procedure Act 1987 (NSW), s 161
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A, 44
Cases
- R v Dann (NSWCCA, unreported, 19 May 2000)
- R v RTB [2002] NSWCCA 104
- R v Murray (1987) 11 NSWLR 12
- R v RNS [1999] NSWCCA 122
- R v Piazza (1997) 94 A Crim R 459
- R v Townsend [1999] NSWCCA 294
- R v Johnson [2004] NSWCCA 76
- R v Wickham [2004] NSWCCA 193
- R v Fordham (1997) 98 A Crim R 359
- R v MMK [2006] NSWCCA 272