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15
Court of Criminal Appeal 16 October 2008

CARLTON v THE QUEEN

[2008] NSWCCA 244

Also reported as (2008) 189 A Crim R 332
Sexual offences
CRIMINAL LAW APPEAL AGAINST CONVICTION WHETHER MISCARRIAGE OF JUSTICE CONSTRUCTION OF PROVISO WHETHER SUMMING UP LACKED BALANCE AND UNFAIR

Citation: Carlton v The Queen [2008] NSWCCA 244
Court: Court of Criminal Appeal, New South Wales
Date: 16 October 2008
Judge(s): Basten JA; Hislop J; Price J

Background

The appellant was convicted in the District Court on 3 August 2006 of four counts of aggravated sexual intercourse without consent involving a child under 16 years of age, contrary to s 61J(1) of the Crimes Act 1900 (NSW). The offences occurred on a single occasion in August 2005 and involved three acts of anal penetration and one act of penile penetration of the complainant's genitalia. The sentencing judge imposed concurrent sentences, each comprising a non-parole period of eight years and six months with an additional term of four years and ten months.

The appellant sought leave to appeal both his convictions and his sentences. The Court of Criminal Appeal granted leave on both grounds and heard the matters together.

  • Whether the trial judge made specific errors in his summing-up that amounted to a miscarriage of justice
  • Whether the summing-up, viewed as a whole, lacked balance and fairness to a degree that constituted a miscarriage of justice
  • Whether the sentencing judge failed to give proper weight to the appellant's mental illness (schizophrenia) and his segregation within the prison system when imposing sentence
  • Whether the imposition of wholly concurrent sentences adequately reflected the separate harm caused by each offence

Decision

Conviction appeal: specific errors in the summing-up

The Court identified three specific errors in the trial judge's summing-up: a misdirection that characterised the appellant as a drug dealer, a mischaracterisation of the appellant's denials regarding certain objects used in the offences, and an inaccurate direction about the possibility of the complainant's DNA being found on one of those objects. The trial judge attempted to correct each error. The Court found that while the correction of the drug-dealing reference was inadequate, that error could not have caused a miscarriage of justice. The direction concerning the appellant's denials also fell short of establishing a miscarriage of justice, given that the complainant's own description of the objects was far more powerful corroborating evidence. The DNA direction was described as troubling, as the trial judge's language departed from that of the forensic biologist and risked inviting jury speculation.

Conviction appeal: overall balance of the summing-up

The Court applied a two-part understanding of "miscarriage of justice": one focused on the fairness of the trial process, and another directed at the soundness of the verdict. Where a complaint concerns imbalance or omissions in a summing-up, the court must assess the summing-up as a whole, in the context of the evidence and counsel's addresses. Here, the Court noted that the irregularities in the summing-up were largely ones of omission rather than commission. Their practical effect was substantially ameliorated by the comprehensive address delivered by defence counsel. The fact that trial counsel took no further objection when given the opportunity was treated as an indicator that the summing-up did not reveal glaring imbalance. The jury's acquittal on some counts also suggested they were not uncritical in their approach to the complainant's evidence. No substantial miscarriage of justice was established and the conviction appeal was dismissed.

Sentence appeal: mental illness and the effect of concurrent sentences

The Court found that the trial judge had failed to account adequately for the combined effect of the appellant's schizophrenia and his segregation within the prison system, which together made his imprisonment more onerous than either condition would have produced alone. Basten JA proposed resentencing to reduce the total term to 12 years, with a non-parole period of seven years and eight months. Price J, with whom Hislop J agreed, reached a different conclusion on the concurrent sentences issue. Price J observed that the imposition of wholly concurrent sentences was generous to the appellant and failed to acknowledge the separate harm caused by four distinct criminal acts on a 10-year-old child. However, Price J was not satisfied that a lesser sentence than that already imposed was warranted in law, and he agreed the sentence appeals should be dismissed. The majority ultimately dismissed the sentence appeals.

Orders Made

  • Leave to appeal granted in respect of convictions on 4 counts of aggravated sexual assault
  • Appeal against convictions dismissed
  • Leave to appeal against the sentences imposed in respect of each count granted
  • Appeal against sentences dismissed (per the majority; note Basten JA proposed resentencing to a 12-year term with a non-parole period of 7 years and 8 months, but the majority did not adopt those orders)

Key Takeaways

  • "Miscarriage of justice" operates on two levels in the context of a criminal conviction appeal: it may refer to a fundamental failure of procedural fairness in the trial process, or it may concern the soundness of the verdict itself; both must be assessed when evaluating errors in a summing-up.
  • Where a summing-up is challenged for lack of balance, the Court of Criminal Appeal considers the summing-up as a whole, alongside counsel's addresses and the evidence, rather than isolating individual passages from their context.
  • Errors in a trial judge's summing-up that were corrected during the trial, and that counsel did not press further objection to, are less likely to establish a substantial miscarriage of justice, particularly where other evidence strongly supported the verdicts.
  • A schizophrenic offender who is also segregated within the prison system faces a combination of hardships more onerous than either condition alone, and a sentencing court must address that combined effect when imposing sentence.
  • Wholly concurrent sentences across multiple offences committed in a single episode may, in appropriate circumstances, fail to reflect the separate harm occasioned by each distinct criminal act, even where the principle of totality militates against a manifestly excessive overall term.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 61J
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A, 44, 54A, 54B; Div 1A, Pt 4
- Criminal Appeal Act 1912 (NSW), ss 5, 6
- Criminal Appeal Rules, r 4

Cases
- Nudd v The Queen [2006] HCA 9; 80 ALJR 614
- Weiss v The Queen [2005] HCA 81; 224 CLR 300
- Gassy v The Queen [2008] HCA 18; 82 ALJR 838
- TKWJ v The Queen [2002] HCA 46; 212 CLR 124
- B v The Queen [1992] HCA 68; 175 CLR 599
- Green v The Queen [1971] HCA 55; 126 CLR 28
- Stokes v The Queen [1960] HCA 95; 105 CLR 279
- Hannes v Director of Public Prosecutions (Cth) (No 2) [2006] NSWCCA 373
- R v Gallagher [1998] 2 VR 671
- The Queen v Verdins [2007] VSCA 182; 16 VR 269
- R v Way [2004] NSWCCA 131; 60 NSWLR 168
- R v Simpson [2001] NSWCCA 534; 53 NSWLR 704
- Edwards v The Queen [1993] HCA 63; 178 CLR 193
- Williams v The Queen [1986] HCA 88; 161 CLR 278
- Hargan v The King [1919] HCA 45; 27 CLR 13