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Court of Criminal Appeal 9 July 2007

JMW v Regina

[2007] NSWCCA 187

Sexual offencesAssault & violence
CRIMINAL LAW APPEAL AGAINST CONVICTION AND SENTENCE ADMISSION OF FRESH EVIDENCE ON APPEAL

Citation: JMW v Regina [2007] NSWCCA 187
Court: NSW Court of Criminal Appeal
Date: 9 July 2007
Judges: Giles JA, Hidden J, Harrison J

Background

The appellant was convicted by a jury in the District Court of New South Wales in June 2005 on five counts arising from offences committed on 22 March 1981. The victim was 14 years of age at the time. The counts included assault with intent to rape, two acts of indecency, and two counts of carnal knowledge. The appellant was acquitted of one count of buggery.

Judge Murrell DCJ sentenced the appellant in September 2005 to an aggregate non-parole period of five years, commencing 30 June 2005, with a balance of term of four years expiring 29 June 2014. The sentencing judge found that the appellant's age, ill health, and the fact that he would serve his sentence in protective custody constituted special circumstances justifying a reduced ratio between the non-parole period and total term.

The appellant appeared unrepresented in the Court of Criminal Appeal and filed numerous handwritten documents setting out his complaints. The Crown filed supplementary submissions addressing those materials once they were served.

  • Whether a miscarriage of justice occurred at trial due to the alleged incompetence or failures of the appellant's legal representatives, including failure to call witnesses and failure to challenge medical evidence
  • Whether false or misleading evidence given by police contributed to an unfair trial
  • Whether media influence, particularly at the sentencing stage, affected the proceedings
  • Whether fresh evidence ought to be admitted on appeal
  • Whether a less severe sentence was warranted in law, having regard to the appellant's age and ill health

Decision

The Court dismissed the conviction appeal on all grounds. The appellant's primary complaints centred on the conduct of his trial lawyers, including alleged failures to call witnesses, challenge medical evidence, and act on his instructions. The Court found no basis on which those complaints established a miscarriage of justice. The appellant had filed no formal evidence in support of his grounds, and his handwritten documents, while considered, did not establish the factual foundation necessary to sustain the complaints made.

The Court also rejected the grounds relating to alleged false police evidence and media influence. No sufficient evidentiary basis was established to support a conclusion that either of those matters had tainted the trial or sentencing process.

On the sentence appeal, the Court granted leave to appeal but dismissed the appeal. Harrison J found that the sentencing judge had committed no identifiable error and that her discretion had not miscarried. The Court noted that the sentencing judge had already given very considerable weight to the appellant's age, state of health, and protective custody arrangements, reflected in a non-parole to total term ratio of approximately 55 per cent, well below the standard 75 per cent ratio under the legislation. The Court was not satisfied that any less severe sentence was "warranted in law" within the meaning of s 6(3) of the Criminal Appeal Act 1912.

Orders Made

  • The appeal against conviction was dismissed.
  • Leave to appeal against sentence was granted, and the sentence appeal was dismissed.
  • The non-publication order was discharged with effect from the expiration of 28 days from the date of judgment.

Key Takeaways

  • Allegations of legal representative incompetence will not establish a miscarriage of justice on appeal without a proper evidentiary foundation supporting the specific complaints made.
  • A conviction appeal brought by an unrepresented appellant will still be assessed against the same legal standards; the Court considered all materials filed, including informal handwritten submissions, but held them to the required evidentiary standard.
  • Under s 6(3) of the Criminal Appeal Act 1912, a sentence appeal requires the appellant to demonstrate that a less severe sentence was "warranted in law," not merely arguable or preferable.
  • In dismissing the sentence appeal, the Court of Criminal Appeal confirmed that a non-parole to total term ratio significantly below the statutory default of 75 per cent can appropriately reflect special circumstances such as advanced age, ill health, and protective custody.
  • No error was established in the sentencing judge's approach despite the significant gap between the date of offending (1981) and the date of trial and sentence (2005).

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 63, 65, 76, 76A, 79
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 19(2), 30A, 44(2)
- Criminal Appeal Act 1912 (NSW), s 6(3)

Cases:
- Gallagher v R (1986) 160 CLR 392
- Ignjatic v R (1993) 68 A Crim R 333
- R v Abou-Chabake [2004] NSWCCA 356
- R v Ritevski (1989) A Crim R 11
- R v Simpson (2001) 53 NSWLR 704
- TKWJ v R (2002) 212 CLR 124