Citation: Langbein v R [2008] NSWCCA 38
Court: NSW Court of Criminal Appeal
Date: 28 February 2008
Judges: McClellan CJ at CL, Hall J, Price J
Background
The appellant was convicted in the District Court of persistent sexual abuse of a child under s 66EA of the Crimes Act 1900, following a trial before Shadbolt DCJ. The complainant was the appellant's stepdaughter, born in 1993. The offending spanned several years and involved four alleged occasions of sexual conduct at two different locations in Sydney.
The four occasions were identified in the complainant's police interviews as the "first time," "second time," "worst time," and "last time." The complainant initially disclosed the abuse to her teacher during a school child protection class in September 2004, and subsequently made a complaint to her stepmother on the same day. She was interviewed by police on three separate occasions, and edited recordings of those interviews formed her evidence in chief at trial.
The appellant was sentenced to a total term of 10 years' imprisonment, comprising a non-parole period of 7.5 years and a further term of 2.5 years. He appealed both conviction and sentence.
Legal Issues
- Whether the trial judge's summing up lacked balance and objectivity, and unfairly bolstered the complainant's evidence and the Crown case
- Whether the trial judge erred in admitting evidence of complaint, particularly in relation to the "fresh in the memory" requirement
- Whether complaint evidence was admissible to re-establish the complainant's credibility
- Whether the trial judge erred in his direction to the jury on the Markuleski principle (the requirement that, on a charge of persistent sexual abuse, the jury be satisfied of at least three discrete incidents)
- Whether the non-parole period was appropriate given the conditions of the appellant's custody
- Whether the sentence was manifestly excessive
Decision
Conviction appeal: Summing up
The Court rejected the argument that the trial judge's summing up lacked balance or objectivity. While acknowledging that a summing up must fairly present both the Crown and defence cases, the Court found no error in the approach taken by Shadbolt DCJ. The directions given to the jury were assessed as adequate and the overall presentation of the evidence was not found to have unfairly favoured the prosecution.
Conviction appeal: Complaint evidence
The Court considered whether the complaint made to the complainant's stepmother on the afternoon of the school disclosure was admissible. The "fresh in the memory" requirement for complaint evidence was examined in the context of a disclosure made some years after the alleged abuse. The Court found no error in the trial judge's decision to admit the evidence, concluding that it was properly received and that any direction given in relation to it was appropriate.
Conviction appeal: Markuleski direction
Under the Markuleski principle, where a charge of persistent sexual abuse relies on multiple incidents, the jury must be unanimously satisfied that at least three separate incidents occurred. The Court found that the trial judge's direction on this point was adequate. No error was established that would warrant intervention.
Sentence appeal
The appellant argued that his custody conditions were more onerous than typical, which he contended constituted "special circumstances" justifying a longer parole period relative to the total sentence. The Court granted leave to appeal the sentence but dismissed the appeal. The Court found the sentence was not excessive, noting the offending spanned a significant period, involved a serious breach of trust, and that the individual incidents, if separately charged, could have attracted substantially higher penalties. The trial judge had found the offending to be in the mid-range, and the Court agreed that assessment was appropriate.
Orders Made
- The appeal against conviction is dismissed.
- Leave to appeal against sentence is granted; the sentence appeal is dismissed.
Key Takeaways
- A summing up in a child sexual abuse trial must fairly present both the Crown and defence cases, but the Court of Criminal Appeal confirmed that not every favourable reference to a complainant's evidence renders a summing up unbalanced.
- The "fresh in the memory" requirement for complaint evidence does not operate as a rigid temporal bar. The Court found the requirement was satisfied in circumstances where the complaint was made on the same day as the school disclosure, even though the alleged abuse had occurred years earlier.
- Under the Markuleski principle, the jury must be directed that they must unanimously agree on at least three separate incidents before convicting on a charge of persistent sexual abuse. No error in the direction given here was established.
- More onerous conditions of custody do not automatically constitute "special circumstances" warranting a departure from the standard ratio between non-parole period and total sentence. The Court found the 7.5-year non-parole period within a 10-year total sentence was not excessive in the circumstances.
- In assessing whether a sentence for persistent sexual abuse is manifestly excessive, a useful measure is to compare the overall sentence against the penalties that would have been available had the individual acts been charged separately.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), ss 61J, 61M(2), 61P, 66A, 66C, 66EA
- Crimes (Serious Sex Offenders) Act 2006 (NSW)
Cases
- R v Markuleski (2001) 52 NSWLR 82
- Papakosmas v The Queen (1999) 196 CLR 297
- Graham v The Queen (1998) 195 CLR 606
- B v The Queen (1992) 175 CLR 599
- R v Way (2004) 60 NSWLR 168
- R v Simpson (2001) 53 NSWLR 704
- R v Gent (2005) 162 A Crim R 29
- Skipworth v The Queen [2006] NSWCCA 37
- Picken v Regina [2007] NSWCCA 319
- Hajje v The Queen [2006] NSWCCA 23
- R v Zorad (1990) 19 NSWLR 91
- Power v The Queen (1974) 131 CLR 623
- Attorney-General for the State of NSW v Tillman [2007] NSWSC 605
- Attorney-General for the State of NSW v Winters [2007] NSWSC 1071
- Various other cases cited in the judgment