Citation: KAMM, William v. Regina [2007] NSWCCA 201
Court: New South Wales Court of Criminal Appeal
Date: 9 July 2007
Judge(s): Hodgson JA; Grove J; Simpson J
Background
The appellant was convicted in the District Court on four counts of indecent assault and one count of aggravated sexual intercourse with a child under 16. The offending occurred in 1993 and involved a 15-year-old complainant who was a member of a religious community led by the appellant. The trial proceeded before Williams DCJ and a jury of twelve.
Two procedural issues arose during the trial that formed the basis of the appeal against conviction. First, on the ninth day of the trial, the prosecution amended the fourth count because the original charge referred to a provision of the Crimes Act 1900 that did not exist in 1993. The amended charge was read to the appellant and a fresh plea was entered. Second, the jury sent a note to the trial judge indicating that jurors had observed what they believed to be one defence witness coaching another outside the courtroom. The judge directed the jury to disregard what they had seen rather than discharging the jury.
The appellant was sentenced to a total of five years' imprisonment with a non-parole period of three and a half years. He appealed against both his convictions and, with leave, his sentence on the fourth count.
Legal Issues
- Whether the mid-trial amendment to count 4 was procedurally valid, and specifically whether the jury was required to be resworn following the amendment
- Whether the trial judge erred by directing the jury to disregard the observed coaching of a defence witness, rather than discharging the jury
- Whether the sentence imposed on count 4 was excessive, including whether the trial judge erred by making that sentence cumulative on the other counts
Decision
On the charge amendment, the Court found no procedural irregularity that vitiated the conviction. The amended charge was read to the appellant, he entered a plea, and the jury continued with the trial on the corrected charge. The Court was not persuaded that the jury needed to be resworn merely because the particulars of one count had been corrected mid-trial.
On the jury note, the Court found the trial judge's direction was an appropriate response. The jury had raised an observation, but there was no basis to conclude the direction was insufficient to address any potential prejudice. The Court was not satisfied that discharging the jury was the only available course, or that the failure to do so amounted to error.
On sentence, the Court found no error in the trial judge's reasoning. The trial judge had correctly treated the offences as serious breaches of trust with significant impact on the complainant, taken into account the appellant's lack of insight into his offending as relevant to the risk of reoffending, and appropriately treated count 4 as involving a different level of criminality warranting a cumulative sentence. The total sentence was found to reflect the appellant's overall criminality.
The appeal against conviction was dismissed. Leave to appeal against sentence was granted but that appeal was also dismissed. The High Court subsequently refused special leave on 13 June 2008.
Orders Made
- Appeal against conviction dismissed
- Leave to appeal against sentence granted, and appeal against sentence dismissed
Key Takeaways
- A mid-trial amendment to a charge, where the corrected charge is read to the accused and a fresh plea is entered, does not automatically require the jury to be resworn under the applicable provisions of the Criminal Procedure Act 1986.
- Where a jury sends a note concerning alleged witness coaching observed outside the courtroom, a direction to disregard that observation may be a sufficient and appropriate judicial response; discharge of the jury is not automatically required.
- In dismissing the sentence appeal, the Court of Criminal Appeal confirmed that a sentencing court may impose a cumulative sentence where a particular count involves a materially different level of criminality from the other counts, even where all offences occurred within a single general period.
- The absence of a guilty plea and remorse did not operate as an aggravating factor in sentencing, but it did preclude any reduction in sentence that might otherwise have been available on those grounds.
- No error was established in the trial judge's approach to aggravating factors, including the appellant's position of authority within the religious community and the serious and lasting impact of the offending on the complainant.
Legislation and Cases Referenced
Legislation:
- Criminal Procedure Act 1986 (NSW), ss 20-22
- Jury Act 1977 (NSW), s 72A
- Crimes Act 1900 (NSW), ss 66(1) and (2); 66C(2), 66C(4)
Cases:
- Gilbert v The Queen (2000) 201 CLR 414
- Government Insurance Office of NSW v Bailey (1992) 27 NSWLR 304
- Ibbs v The Queen (1987) 163 CLR 447
- Katsuno v The Queen (1999) 199 CLR 40
- Mackay v The Queen (1977) 136 CLR 465
- Maher v The Queen (1987) 163 CLR 221
- R v Ayles [2007] SASC 82
- R v Court (1988) 87 Cr App R 144
- R v Harkin (1989) 38 A Crim R 296
- R v MAJW [2007] NSWCCA 145
- R v Maric (1978) 52 ALJR 631
- R v Martin (2000) 78 SASR 140
- R v White (1987) 49 SASR 154