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Court of Criminal Appeal 14 July 2009

SKA v R; R v SKA

[2009] NSWCCA 186

Sexual offences
CRIMINAL LAW PARTICULAR OFFENCES OFFENCES AGAINST THE PERSON SEXUAL OFFENCES CRIMINAL LAW CRIMINAL LAW

Citation: SKA v R; R v SKA [2009] NSWCCA 186
Court: NSW Court of Criminal Appeal
Date: 14 July 2009
Judge(s): McClellan CJ at CL, James J, Simpson J (judgment of Simpson J, with whom the others agreed)

Background

The appellant was convicted by a jury of five sexual offences against his niece by marriage, a child born in April 1996. The offences fell into two groups: three counts relating to incidents alleged to have occurred in mid-2004 when the complainant was eight years old, and two counts relating to incidents in December 2006 when she was ten. The appellant was the uncle of the complainant's father by marriage, and the two families were close, with the complainant frequently staying overnight at the appellant's home.

The offences charged under the Crimes Act 1900 included sexual intercourse with a child under ten (Count 1), aggravated indecent assault of a child under ten (Counts 2 and 3), aggravated sexual intercourse with a child aged between ten and fourteen while under the appellant's authority (Count 4), and aggravated indecent assault of a child under sixteen (Count 5). The aggravating factor across Counts 2 to 5 was that the complainant was under the appellant's authority at the time.

After conviction, Finnane DCJ sentenced the appellant to an effective overall sentence with a non-parole period of approximately 4 years, 9 months and 15 days. The appellant appealed against conviction and against the severity of the sentence. The Crown separately appealed, arguing the sentences were manifestly inadequate.

  • Whether the jury's verdicts of guilty were unreasonable or unsupportable having regard to the evidence
  • Whether the Court of Criminal Appeal should view the video-recorded evidence given under the Evidence (Children) Act 1997 or proceed on a transcript of the recording
  • Whether the appellant's sentence was manifestly excessive
  • Whether the Crown's appeal against manifest inadequacy of sentence should succeed, particularly in light of the standard non-parole period framework under the Crimes (Sentencing Procedure) Act 1999 and the principles in R v Way

Decision

Conviction appeal. The Court dismissed the appeal against conviction, finding that the verdicts were not unreasonable or unsupportable on the evidence. On the question of the video evidence, the Court held that it should proceed on the transcript of the video recording rather than viewing the recording itself.

Appellant's sentence appeal. The Court granted leave to appeal against sentence but dismissed the appeal on the grounds of alleged manifest excessiveness. The sentencing judge's structuring of the sentences was examined, but no error warranting reduction was identified.

Crown's sentence appeal. The Crown's appeal succeeded in respect of Count 1. The Court found that the sentencing judge had failed to have adequate regard to the standard non-parole period under the Crimes (Sentencing Procedure) Act 1999, as required by the approach confirmed in R v Way. The original non-parole period for Count 1 was so far below the standard non-parole period as to demonstrate error. The Court also found the original sentence failed to adequately reflect the objective gravity of the offending and gave insufficient weight to general deterrence.

In re-sentencing on Count 1, the Court applied two competing principles: the double jeopardy principle (which, on a successful Crown appeal, calls for sentencing at the bottom of the permissible range) and the statutory obligation to give due regard to the standard non-parole period. The Court expressed some distaste for the level of sentence required by the standard non-parole period provisions, but confirmed it was bound to apply the statute. Applying the totality principle, the Court found no further accumulation beyond Count 1 was required, as the other sentences would be fully subsumed within the new sentence for that count.

Orders Made

  • Appeal against conviction dismissed
  • Leave to appeal against sentence granted; appeal against severity of sentence dismissed
  • Crown appeal allowed in respect of the sentence for Count 1
  • Sentence for Count 1 quashed; appellant re-sentenced to imprisonment with a non-parole period of 8 years (commencing 13 March 2009, expiring 12 March 2017) and a balance of term of 4 years (expiring 12 March 2021)
  • Sentences for Counts 2 and 3 varied to commence 13 March 2009; non-parole period to expire 12 March 2011; balance of term to expire 12 March 2013
  • Sentences for Counts 4 and 5 varied to commence 28 December 2009; non-parole period for Count 4 to expire 27 December 2013, balance of term to expire 27 December 2017; non-parole period for Count 5 to expire 27 December 2011, balance of term to expire 27 December 2013

Key Takeaways

  • The Court of Criminal Appeal confirmed that, on appeal, video evidence given by child complainants under the Evidence (Children) Act 1997 should be considered by reference to the transcript of the recording, not by viewing the video itself.
  • Under sections 54A and 54B of the Crimes (Sentencing Procedure) Act 1999, the objective gravity of each offence must be assessed individually when applying the standard non-parole period framework, consistent with the approach in R v Way.
  • A sentence so substantially below the applicable standard non-parole period as to indicate that the sentencing judge failed to have regard to it constitutes error, even where the offence falls below the mid-range of objective gravity.
  • On a successful Crown appeal, the double jeopardy principle requires re-sentencing at the bottom of the permissible range, but this consideration does not override the statutory obligation to give due regard to the standard non-parole period.
  • In applying the totality principle on re-sentencing, the Court found that an appropriately structured sentence for the most serious count can subsume other sentences, making further accumulation unnecessary.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 61M(1), 61M(2), 66A, 66C(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 54A, 54B, Pt 4 Div 1A
- Criminal Procedure Act 1986 (NSW), Pt 6
- Evidence (Children) Act 1997 (NSW)

Cases
- R v Way [2004] NSWCCA 131; (2004) 60 NSWLR 168
- Carroll v The Queen [2009] HCA 13
- DPP v AZ [2009] NSWCA 51
- M v The Queen [1994] HCA 63; (1994) 181 CLR 487
- R v NZ [2005] NSWCCA 278; (2005) 63 NSWLR 628