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Court of Criminal Appeal 17 July 2007

DJB v R R v DJB

[2007] NSWCCA 209

Sexual offences
CRIMINAL LAW SEXUAL INTERCOURSE WITHOUT CONSENT 14 YEAR OLD VICTIM AMENDMENT MADE TO ORIGINAL INDICTMENT WHETHER TRIAL A NULLITY DIRECTIONS TO JURY

Citation: DJB v R; R v DJB [2007] NSWCCA 209
Court: New South Wales Court of Criminal Appeal
Date: 17 July 2007
Judge(s): McClellan CJ at CL, Hidden J, Price J

Background

The appellant was tried in the District Court at Moree on charges arising from events on 9 October 2004 in Narrabri. The complainant was a 14-year-old girl who had been visiting a cousin living near the appellant. Evidence at trial indicated that the appellant gave the complainant a soft drink that had been laced with Diazepam, causing her to lose consciousness, after which she was sexually assaulted.

The appellant was originally charged jointly with his adult son, NB. After NB sought a separate trial and ultimately pleaded guilty on a separate indictment, a fresh indictment was presented against the appellant alone. The appellant was convicted by a jury on three counts: unlawfully administering an overpowering drug (Diazepam) with intent to commit sexual intercourse without consent, and two counts of aggravated sexual assault of a child under 16 years of age.

The District Court sentenced the appellant to concurrent terms of imprisonment, producing an effective non-parole period of 8 years. The appellant challenged his convictions on multiple grounds. The Crown separately appealed the sentences, arguing that the failure to impose at least partially cumulative sentences resulted in a total effective sentence that was manifestly inadequate.

  • Whether an amendment to the original indictment, replacing the "in company" circumstance of aggravation with the victim's age as the circumstance of aggravation, rendered the trial a nullity.
  • Whether the trial judge's directions to the jury caused jurors to confuse the appellant's conduct with that of his son NB, particularly in relation to the second count of aiding and abetting sexual assault.
  • Whether the jury was misdirected on the issue of intoxication.
  • Whether the trial judge unreasonably restricted the appellant's right to cross-examine witnesses.
  • On the Crown appeal: whether the offences involved distinct acts of criminality requiring at least partial accumulation of sentences, and whether the failure to accumulate produced a total effective sentence that was manifestly inadequate.

Decision

The Court of Criminal Appeal dismissed all grounds of the conviction appeal. On the indictment amendment point, the Court found the amendment did not render the trial a nullity. On the jury directions, Hidden J noted some uncertainty about whether the word "accused" in the trial judge's directions on accessorial liability always referred unambiguously to the appellant rather than his son. However, all three judges were satisfied that the directions, read as a whole, adequately conveyed to the jury the basis on which the appellant could be found guilty of the second count.

The Court rejected the remaining conviction grounds, finding no error in the directions on intoxication and no unreasonable restraint of cross-examination rights. All three judges agreed that the convictions were sound.

On the Crown appeal, the Court found that, while the individual sentences for counts 2 and 3 were not themselves manifestly lenient, the decision to impose all three sentences concurrently was an error. The two sexual assault offences represented distinct acts of criminality that called for at least partial accumulation. The failure to accumulate any of the sentences produced a total effective sentence that was manifestly inadequate, particularly against the backdrop of a standard non-parole period of 10 years for offences under section 61J of the Crimes Act 1900.

The Court intervened and re-sentenced, noting that double jeopardy considerations meant the substituted sentence should reflect the least sentence that could appropriately have been imposed in the District Court. The sentence for count 2 was made to commence after the expiry of the non-parole period for count 1, producing an extended total effective sentence.

Orders Made

  • Conviction appeal dismissed.
  • Crown appeal against sentence allowed.
  • The commencement and expiration dates fixed by the District Court for count 2 were set aside.
  • For count 2: non-parole period of 8 years to commence on 11 October 2006 and expire on 10 October 2014; balance of term to commence on 11 October 2014 and expire on 10 October 2018.
  • Total effective sentence: non-parole period of 10 years with a balance of term of 4 years.
  • Earliest date for release to parole: 10 October 2014.

Key Takeaways

  • Amending an indictment to substitute one pleaded circumstance of aggravation for another did not, on the facts of this case, render the subsequent trial a nullity.
  • Jury directions on accessorial liability must be read as a whole: isolated ambiguity in the use of the term "accused" did not constitute a fatal misdirection where the overall charge adequately identified the basis for the appellant's guilt.
  • Where multiple offences on an indictment represent distinct acts of criminality, a sentencing court may be required to impose at least partially cumulative sentences; running all sentences concurrently is not always an appropriate exercise of discretion.
  • The Court of Criminal Appeal confirmed that on a Crown appeal, even where error is established, the court retains a discretion to decline to intervene, and any substituted sentence should represent the least sentence that could properly have been imposed.
  • In this case, the standard non-parole period of 10 years prescribed for aggravated sexual assault under section 61J of the Crimes Act 1900 was a significant reference point in assessing whether the total effective sentence was manifestly inadequate.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), particularly sections 38 and 61J
- Criminal Procedure Act 1986 (NSW)
- Criminal Appeal Act 1912 (NSW), section 5D
- Crimes (Sentencing Procedure) Act 1999 (NSW), section 54A and the Table to Division 1A of Part 4
- Firearms Act 1996 (NSW), sections 7, 36, 39, 65

Cases:
- Des Rosiers v R [2006] NSWCCA 16
- MLP v Regina [2006] NSWCCA 271
- Munday v Gill (1930) 44 CLR 38
- Pearce v The Queen (1998) 194 CLR 610
- R v Howard (1992) 29 NSWLR 242
- R v Janceski (2005) 64 NSWLR 10
- R v Landy [1943] VLR 73
- R v Mills (2005) 154 A Crim R 40
- R v Moffit (1990) 20 NSWLR 114
- R v Qutami (2001) 127 A Crim R 369
- R v Sepulveda [2003] NSWCCA 131
- R v Ta (2003) 57 NSWLR 444
- R v Tagaras (NSWCCA, unreported, 9 April 1974)
- R v Taylor [2003] NSWCCA 194
- R v Wall [2002] NSWCCA 42
- R v Way (2004) 60 NSWLR 168
- Regina v Stankovic [2006] NSWCCA 229
- Veen v The Queen (No 2) (1988) 164 CLR 465