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Court of Criminal Appeal 14 July 2008

OWENS v R

[2008] NSWCCA 155

Assault & violence
CRIMINAL LAW SENTENCING

Citation: Owens v R [2008] NSWCCA 155
Court: NSW Court of Criminal Appeal
Date: 14 July 2008
Judge(s): Allsop P, James J, Price J

Background

The appellant was convicted by a jury in the District Court of aggravated detaining for advantage under s 86 of the Crimes Act. The victim, who was heavily pregnant at the time, had been living in the appellant's flat. On 17 January 2005, after she returned to the flat, the appellant verbally abused her and, according to the victim's trial evidence, physically assaulted her repeatedly, striking her on the face, legs, stomach and left side of her body.

The jury acquitted the appellant of the more serious charge of specially aggravated detaining for advantage and also acquitted him of manslaughter arising from the death of the victim's prematurely born baby (who died after sustaining brain damage linked to the victim's ruptured uterus). The jury's verdicts were consistent with accepting that no actual bodily harm had been proved, rather than with any rejection of the assault evidence.

At sentencing, Judge Freeman accepted the victim's account of the physical assault and treated it as a seriously aggravating circumstance. The appellant challenged that finding on appeal.

  • Whether it was open to the sentencing judge to find, beyond reasonable doubt, that the appellant had physically assaulted the victim in the manner she described at trial.
  • Whether the jury's acquittals on the specially aggravated detention and manslaughter charges required the sentencing judge to treat the assault evidence as unproven.

Decision

The Court of Criminal Appeal held that it was open to the sentencing judge to be satisfied beyond reasonable doubt that the assault occurred as described by the victim. The Court noted that the sentencing judge had the significant advantage of having observed the victim give evidence over an extended period during the trial.

The Court rejected the argument that the jury acquittals necessarily implied the jury had not accepted the victim's assault evidence. Both acquittals could be explained consistently with the jury accepting that evidence. On the specially aggravated charge, the jury may simply have been unpersuaded that actual bodily harm (the ruptured uterus) was caused by the assault, given medical evidence that the uterus could have ruptured spontaneously. On the manslaughter charge, the same reasoning applied.

The Court also considered two specific items of evidence the appellant relied upon to undermine the finding. First, the appellant pointed to the absence of any independent medical confirmation of the assaults. The Court noted, however, that there was equally no medical evidence positively inconsistent with the assault having occurred. Second, the appellant relied on evidence that the victim told an ambulance officer she had not been assaulted. The sentencing judge had explained that answer by finding the victim was in a state of extreme distress and in fear of her offenders at the time, and the Court found it was open to the sentencing judge to accept that explanation.

Orders Made

  • Leave to appeal against sentence granted.
  • Appeal against sentence dismissed.

Key Takeaways

  • A sentencing judge may make findings of fact adverse to a convicted person, but only if those facts are proved beyond reasonable doubt: The Queen v Olbrich (1999) 199 CLR 270.
  • Acquittals on related charges do not automatically preclude a sentencing judge from accepting evidence that the jury may not have been required to resolve definitively in reaching those acquittals.
  • Where an acquittal is explicable on grounds other than a rejection of a particular witness's account, the sentencing court retains the ability to accept that account when sentencing on the proven offence.
  • The absence of independent corroborating evidence does not, of itself, prevent a finding beyond reasonable doubt where no evidence positively contradicts the witness's account.
  • In dismissing the appeal, the Court of Criminal Appeal confirmed that a sentencing judge who has presided over the trial is well-placed to assess credibility, and appellate courts will not readily interfere with such assessments.

Legislation and Cases Referenced

Legislation
- Crimes Act (NSW), s 86 (detaining for advantage, aggravated detaining for advantage, specially aggravated detaining for advantage)

Cases
- The Queen v Olbrich (1999) 199 CLR 270