Citation: PICKEN v REGINA; REGINA v PICKEN [2007] NSWCCA 319
Court: New South Wales Court of Criminal Appeal
Date: 26 November 2007
Judge(s): Mason P, Hidden J, Harrison J
Background
The appellant, aged 20 at the time of the offences, was a dance instructor who attended a party where a 13-year-old student was also present. During the evening, while the appellant and several children were in a spa pool, the complainant alleged that the appellant digitally penetrated her on two occasions and forced her hand onto his erect penis. These events occurred over 20 to 30 minutes after 11pm, largely beneath the surface of the water and unobserved by the other children present.
Following the incidents, the complainant left the spa in distress, had a shower, and reported the conduct to her mother and then to police in the early hours of the following morning. The appellant denied all allegations in a police statement and in sworn evidence at trial.
A jury in the District Court convicted the appellant on two counts of aggravated sexual intercourse without consent and one count of aggravated indecent assault, with the aggravating circumstance being that the complainant was under 16 years of age. The sentencing judge imposed a suspended sentence. The appellant then appealed against his conviction, and the Crown separately appealed against the sentence as manifestly inadequate.
Legal Issues
- Whether alleged misdirections or non-directions during the trial, most of which were not objected to at the time, constituted appealable errors under rule 4 of the Criminal Appeal Rules
- Whether any of those errors amounted to an absence of a fair trial, such that leave ought to be granted to raise them on appeal
- Whether the suspended sentence imposed under s 12 of the Crimes (Sentencing Procedure) Act 1999 was manifestly inadequate
- Whether the sentencing judge gave excessive weight to the appellant's medical condition (attention deficit disorder requiring Ritalin) in deciding to suspend the sentence
- Whether the sentencing judge failed to follow the proper sentencing methodology by not first determining an appropriate term before deciding to suspend it
Decision
Conviction appeal: Mason P (with Hidden J and Harrison J agreeing) dismissed the conviction appeal. The appellant conceded that the evidence was sufficient to support the jury's verdict. The principal challenges involved directions and omissions at trial that had not been the subject of objection before the trial judge. The Court applied rule 4 of the Criminal Appeal Rules, which requires leave before a previously unchallenged direction or omission can ground an appeal. Leave is available only where the appellant demonstrates the error caused a miscarriage of justice. The Court found that the grounds raised did not clear that threshold and that the appellant had received a fair trial.
Crown sentence appeal: Mason P also dismissed the Crown's appeal against the suspended sentence. The sentencing judge had found the objective seriousness of the offending to be at the lower end of the scale and had made detailed factual findings about the appellant's attention deficit disorder and the significant risks he would face in custody, including difficulty obtaining his Ritalin medication and a real danger of violence from other inmates. Mason P found no error in that approach, describing it as "both sensitive and realistic."
The Court rejected the Crown's submission that the sentencing judge had used the appellant's medical condition as a "rogues charter" and found no breach of the methodology set out in R v Zamagias. Mason P acknowledged the sentence was lenient and that a custodial sentence would have survived appellate challenge. Nevertheless, the decision to suspend did not involve appealable error. As an additional reason for declining to interfere, Mason P noted the considerable time that had elapsed between the guilty verdicts and the determination of the appeal.
Orders Made
- Appeal against conviction dismissed
- Crown appeal against sentence dismissed
Key Takeaways
- Under rule 4 of the Criminal Appeal Rules, an appellant cannot raise a misdirection or non-direction as a ground of appeal without leave, and leave will only be granted where the error is shown to have caused a miscarriage of justice or an absence of a fair trial.
- A sentencing court may take into account a specific and evidenced risk that an offender will be unable to access necessary medication in custody, and that the offender faces a real danger of serious violence if imprisoned, without that approach constituting an impermissible use of medical condition as a mitigating "charter."
- In dismissing the Crown appeal, the Court confirmed that where the objective seriousness of offending is found to be low, a suspended sentence under s 12 of the Crimes (Sentencing Procedure) Act 1999 may be appropriate even for offences of sexual assault involving a minor.
- No error was established in the sentencing judge's methodology: the findings on medical condition and custodial risk followed, rather than displaced, the judge's assessment of objective seriousness.
- The Court of Criminal Appeal noted, without making it determinative, that the passage of significant time between conviction and the resolution of an appeal is a factor that may weigh against appellate interference with sentence in the exercise of discretion.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), ss 61J, 61M
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 12
- Criminal Appeal Rules, r 4
Cases:
- Cunningham v R (1992) 61 A Crim R 412
- Dinsdale v The Queen (2000) 202 CLR 321
- Palmer v R (1992) 64 A Crim R 1
- Papakosmas v The Queen (1999) 196 CLR 297
- R v Hircock [1970] 1 QB 67
- R v Markuleski (2001) 52 NSWLR 82
- R v Meher [2004] NSWCCA 355
- R v MTP [2002] VSCA 81
- R v Reeves (1992) 29 NSWLR 109
- R v Senior [2001] QCA 346
- R v Thompson [1966] QWN 47
- R v Wilson (2005) 62 NSWLR 346
- R v Zamagias [2002] NSWCCA 17
- Taleb v R [2006] NSWCCA 119
- Tripodina and Morabito v R (1988) 35 A Crim R 183
- Tully v The Queen [2006] HCA 56; 231 ALR 712