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Court of Criminal Appeal 1 April 2008

PHILOPOS v R

[2008] NSWCCA 66

Sexual offences
CRIMINAL LAW APPEAL AGAINST CONVICTION AND SENTENCE WHETHER APPELLANT FIT TO BE TRIED NO APPLICATION MADE BY DEFENCE COUNSEL OVERWHELMING CROWN CASE CRIMINAL LAW

Citation: Philopos v R [2008] NSWCCA 66
Court: NSW Court of Criminal Appeal
Date: 1 April 2008
Judges: McClellan CJ at CL, James J, Barr J

Background

The appellant was convicted in the District Court on four counts of indecent assault and two counts of sexual intercourse without consent. The offences occurred in the early hours of 3 April 2003 at Westmead Children's Hospital, where the appellant had brought his young son for emergency treatment. The complainant, a 16-year-old girl hospitalised for depression and severe social phobia, was in the adjacent hospital bed separated by a curtain.

The Crown alleged the appellant subjected the complainant to a sustained series of sexual assaults over the course of the night. The complainant's psychiatric condition, which caused her to withdraw under stress, was relied upon to explain why she did not raise the alarm. DNA evidence placed the appellant's genetic material on the complainant's body, and the complainant reported the assaults to her psychiatrist the following morning.

The appellant was sentenced to 12 years' imprisonment with a non-parole period of 8 years. He appealed against both conviction and sentence, raising issues concerning his fitness to stand trial, the conduct of his legal representation, and the alleged excessiveness of the sentence.

  • Whether the trial judge erred by failing to adjourn the trial to obtain a medical assessment of the appellant's state of mind, in circumstances where no formal fitness application had been made by defence counsel
  • Whether the trial judge erred by refusing an adjournment after the appellant's legal representatives sought to withdraw due to conflicting instructions, and whether the resulting absence of representation caused a miscarriage of justice
  • Whether the sentence of 12 years with an 8-year non-parole period was manifestly excessive, having regard to the appellant's possible mental illness and the alleged mid-range nature of the criminality

Decision

Fitness to be tried: A fitness hearing had already been conducted in the District Court in May 2005, at which the appellant was found fit to stand trial. Psychiatric evidence from Dr Wong concluded the appellant was probably contriving his symptoms and had no genuine psychiatric disorder. No formal application for an assessment was made by defence counsel during the trial. The Court of Criminal Appeal found no error in the trial judge's failure to adjourn for a further psychiatric assessment in those circumstances.

Legal representation: The appellant's legal representatives withdrew during the trial proceedings after receiving conflicting instructions, and the trial judge refused to adjourn proceedings to allow the appellant to obtain fresh representation. The Court considered whether this refusal produced a miscarriage of justice. The Crown case was described as overwhelming, supported by DNA evidence, the complainant's contemporaneous report to her psychiatrist, and the appellant's own significantly inconsistent evidence at trial. The Court found that the absence of representation, in the context of that overwhelming evidence, did not produce a miscarriage of justice.

Sentencing: The sentencing judge placed the sexual intercourse offences at the very least at mid-range criminality. The Court of Criminal Appeal rejected the submission that the sentence was manifestly excessive. It noted the appellant had taken advantage of a 16-year-old girl with a serious psychiatric condition who was unable to complain or resist effectively. The offences involved both digital and penile penetration. A non-parole period of 8 years, one year above the 7-year standard for the relevant offence, was held not to be excessive given the seriousness of the conduct.

Orders Made

  • Appeal against conviction dismissed.
  • Application for leave to appeal against sentence granted, but the appeal dismissed.

Key Takeaways

  • Where a fitness hearing has already been conducted and returned a finding that an accused is fit, and no formal fitness application is made during trial, the Court of Criminal Appeal found no obligation on the trial judge to adjourn proceedings for a further psychiatric assessment.

  • A trial judge's refusal to adjourn to allow an accused to obtain fresh legal representation does not automatically produce a miscarriage of justice. The Court of Criminal Appeal assessed whether the absence of representation actually affected the outcome, and concluded it did not where the Crown case was overwhelming.

  • Conflicting instructions from an accused, leading defence counsel to withdraw, do not in themselves entitle the accused to a further adjournment as of right.

  • In dismissing the sentence appeal, the Court affirmed that offences of sexual assault committed against a vulnerable hospitalised victim, exploiting her inability to resist or complain, could properly attract a non-parole period exceeding the standard non-parole period.

  • Psychiatric evidence that an accused may have suffered a mental illness at the time of the offences does not automatically warrant a sentence reduction, particularly where competing expert evidence supports the view that symptoms were contrived.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 61L and 61I
- Mental Health (Criminal Procedure) Act 1990 (NSW)

Cases:
- Craig v South Australia (1995) 184 CLR 163
- Dietrich v The Queen (1992) 177 CLR 292
- Frawley v R (1993) 69 A Crim R 208
- Greer v R (1992) 62 A Crim R 442
- McInnis v The Queen (1979) 143 CLR 575
- R v IAS (2004) 146 A Crim R 416; [2004] SASC 240
- R v Kama (2000) 110 A Crim R 47; [2000] NSWCCA 23
- R v Kaliti (2001) 34 MVR 160; [2001] NSWCCA 268