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Court of Criminal Appeal 6 March 2008

Perez v Regina

[2008] NSWCCA 46

Sexual offences
CRIMINAL PRACTICE & PROCEDURE APPEAL AGAINST CONVICTION AND SENTENCE LONGMAN DIRECTION DELAY UP TO 4 YEARS WHETHER LONGMAN NECESSARY MARKULESKI DIRECTION

Citation: Perez v Regina [2008] NSWCCA 46
Court: NSW Court of Criminal Appeal
Date: 6 March 2008
Judge(s): Beazley JA, James J, Kirby J (Kirby J delivered the leading judgment; Beazley JA and James J agreed)

Background

The appellant was tried in the District Court in October 2006 before O'Reilly ADCJ and a jury. The Crown alleged that he had engaged in a sexual relationship with a child complainant over a four-year period beginning when she was 10 years old and continuing until she was 14. The appellant was a Spanish-speaking family friend who had regular access to the complainant's home following her parents' separation.

The indictment contained nine counts (including alternatives), spanning aggravated indecent assault and sexual intercourse with a child under the Crimes Act 1900. After a trial of approximately one week, the jury acquitted the appellant on five counts but convicted him on four: two counts of aggravated indecent assault (counts 1 and 2) and two alternative counts of sexual intercourse with a child (counts 3A and 4A).

The sentencing judge imposed a total effective term of 7 years imprisonment with a non-parole period of 5 years and 6 months. The appellant challenged both the convictions and the sentence on appeal.

  • Whether a Longman warning (a direction to the jury about the dangers of convicting where delay has made it difficult for the accused to respond to allegations) was required, given a delay of up to four years between the alleged offending and trial
  • Whether the content of any Longman warning should vary with the length of the delay
  • Whether a Markuleski direction (addressing how a jury should approach counts where the evidence of one complainant supports multiple charges) was adequate, particularly where defence counsel had not objected at trial
  • Whether the verdicts were inconsistent, given that the jury convicted on counts 3A and 4A (sexual intercourse with a child) but acquitted on counts 3 and 4 (aggravated sexual intercourse without consent)
  • Whether the sentence was infected by legal error, and if so, whether a lesser sentence was warranted under s 6(3) of the Criminal Appeal Act 1912

Decision

Conviction appeal dismissed. The Court found that no Longman warning was strictly necessary on the facts, but that the trial judge had nonetheless given an appropriate warning. The Court confirmed that the length of delay is a relevant consideration in shaping the content and strength of such a warning, but that the direction given adequately addressed the prejudice arising from the four-year period. The absence of a defence objection to the Markuleski direction at trial engaged Rule 4 (the rule requiring demonstrated miscarriage of justice where no objection was taken), and the Court was not satisfied that any inadequacy in that direction caused a miscarriage of justice.

Inconsistent verdicts ground rejected. The Court held that the acquittals on counts 3 and 4 (aggravated sexual intercourse without consent) and the convictions on the alternative counts 3A and 4A (sexual intercourse with a child, not requiring absence of consent) were not logically inconsistent. The jury was entitled to be satisfied of sexual intercourse with a child without being satisfied beyond reasonable doubt that the intercourse was non-consensual in the aggravated sense.

Sentence appeal allowed on restructuring, not quantum. The Court identified an error in the sentencing structure: the sentencing judge had operated on misinformation that distorted the exercise of the sentencing discretion, resulting in a non-parole period that departed from the standard statutory ratio without explanation. The Court was not persuaded that a lesser total term of imprisonment was warranted, holding that 7 years remained appropriate given the serious nature of the offending, which involved penile penetration of a child aged 11 and then 12. However, the Court restructured the sentence to restore the standard statutory ratio between head sentence and non-parole period, treating this adjustment as one warranted in fairness to the appellant.

Orders Made

  • Appeal against conviction dismissed
  • Leave to appeal against sentence granted
  • Sentence imposed on 5 December 2006 quashed and replaced as follows:
  • Counts 1 and 2: 4 years imprisonment (commencing 26 June 2006, expiring 25 June 2010), non-parole period of 3 years (expiring 25 June 2009); concurrent
  • Count 3A: 6 years imprisonment (commencing 26 June 2007, expiring 25 June 2013), non-parole period of 4 years and 3 months (expiring 25 September 2011)
  • Count 4A: Non-parole period of 4 years and 3 months (commencing 26 June 2007, expiring 25 September 2011), balance of term of 1 year 9 months (expiring 25 June 2013); concurrent with count 3A
  • First eligible parole date: 26 September 2011

Key Takeaways

  • A Longman warning addresses the forensic disadvantage to an accused arising from delay between alleged offending and trial; the Court of Criminal Appeal confirmed that the length of delay is relevant not only to whether such a warning is required but also to the strength and specificity of its content.
  • Where defence counsel raises no objection to a Markuleski direction at trial, an appellate court will apply Rule 4, requiring the appellant to demonstrate that the absence or inadequacy of the direction caused an actual miscarriage of justice before the conviction will be disturbed.
  • Verdicts are not necessarily inconsistent where a jury convicts on an alternative count and acquits on the principal count, provided the elements of each charge are distinct and the outcomes are logically reconcilable on the evidence.
  • Misinformation placed before a sentencing judge that distorts the exercise of the sentencing discretion can constitute error sufficient to enliven an appellate court's power to resentence, even where the total term imposed remains appropriate.
  • In resentencing, the Court of Criminal Appeal restored the standard statutory ratio between head sentence and non-parole period under the Crimes (Sentencing Procedure) Act 1999, treating a departure from that ratio as warranting correction in fairness to the appellant even where it might otherwise be characterised as minor.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 61J, 61M(1), 66C(1), 66D
- Criminal Appeal Act 1912 (NSW), s 6(3)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 44(2)

Cases
- Longman v The Queen (1989) 168 CLR 79
- R v Markuleski [2001] NSWCCA 290; (2001) 52 NSWLR 82
- Crampton v The Queen [2000] HCA 60; (2000) 206 CLR 161
- Doggett v The Queen [2001] HCA 46; (2001) 208 CLR 343
- Tully v The Queen [2006] HCA 56; (2006) 167 A Crim R 192
- Robinson v The Queen [1999] HCA 42; (1999) 197 CLR 162
- M v The Queen (1994) 181 CLR 487
- MacKenzie v The Queen (1996) 190 CLR 348
- Jones v The Queen (1997) 191 CLR 439
- R v Murray (1987) 11 NSWLR 12
- R v Johnston (1998) 45 NSWLR 362
- R v Saffron (1989) 17 NSWLR 395
- R v BWT [2002] NSWCCA 60; (2002) 54 NSWLR 241
- R v WRC [2002] NSWCCA 210; (2002) 130 A Crim R 89
- JJB v The Queen [2006] NSWCCA 126; (2006) 161 A Crim R 187
- DPW v R [2006] NSWCCA 295; (2006) 164 A Crim R 583
- DRE v The Queen [2006] NSWCCA 280; (2006) 164 A