Citation: Orkopoulos v R [2009] NSWCCA 213
Court: NSW Court of Criminal Appeal
Date: 25 August 2009
Judge(s): Spigelman CJ, McClellan CJ at CL, Johnson J (unanimous)
Background
The appellant was a former councillor of Lake Macquarie City Council and later a Member of the NSW Parliament, serving as Minister for Aboriginal Affairs from August 2005. He was charged on an indictment containing 36 counts of drug supply and sexual offences involving three complainants, covering an alleged period between August 1995 and August 2006. He pleaded guilty to two counts before trial and was acquitted of several others; the jury returned guilty verdicts on 28 counts.
The drug charges included supplying cannabis and heroin. The sexual offence charges included sexual intercourse without consent, sexual intercourse with a male aged between 10 and 18 years (an offence under s 78K of the Crimes Act 1900 that was subsequently repealed), indecent assault, and aggravated indecent assault. The prosecution relied on tendency evidence, which is evidence that a person has a tendency to act in a particular way. Here, the alleged tendency was that the appellant befriended young men, introduced them to cannabis, alcohol or heroin, and then attempted to engage in sexual relations with them.
The appellant was sentenced to an overall term of 13 years and 11 months, with a non-parole period of 9 years and 3 months. He appealed both his conviction and his sentence.
Legal Issues
- Whether the guilty verdicts were unsafe and unsatisfactory
- Whether the trial judge gave adequate directions to the jury regarding the tendency evidence drawn from the accounts of multiple complainants
- Whether the overall head sentence was excessive
- Whether the sentencing court was required to apply leniency to the s 78K offences on the basis that the offence had since been abolished
Decision
Conviction appeal: The Court of Criminal Appeal dismissed the appeal against conviction. It found that the verdicts were not unsafe or unsatisfactory. The Court also rejected the argument that the trial judge's directions on tendency evidence were inadequate, finding no error sufficient to disturb the jury's verdicts.
Sentence appeal (ground 3, excessive head sentence): The Court granted leave to appeal against sentence and upheld the appeal in part. The overall structure of the sentences was adjusted, with individual commencement and expiry dates amended across a number of counts. The Court's intervention was partly directed at correcting the sequencing and totality of the sentences as originally imposed.
Sentence appeal (ground 4, abolished offence): The Court accepted that the abolition of s 78K was a relevant consideration in sentencing for offences under that provision. Because s 78K was repealed in 2003 as part of a legislative reform that lowered the age of consent for males from 18 to 16, the conduct underlying several of the counts would no longer constitute a criminal offence in relation to complainants who were aged between 16 and 18 at the time. The Court treated this as a mitigating factor warranting some reduction in the sentences imposed for the s 78K counts, and re-sentenced the appellant accordingly on those counts.
Orders Made
- Appeal against conviction dismissed.
- Leave to appeal against sentence granted; appeal upheld in part.
- The appellant re-sentenced across multiple counts, with key terms including:
- Count 5 (sexual intercourse without consent): minimum term of 2 years and 4 months from 19 October 2014, with an additional term of 4 years and 8 months expiring 18 October 2021
- Count 31 (s 78K): minimum term of 1 year and 9 months from 19 July 2011, with an additional term of 1 year and 8 months expiring 18 December 2014
- Counts 10, 11, 18, 28 (s 78K): fixed terms ranging from 1 year 9 months to 2 years 3 months, commencing at various dates from April 2011
- Remaining counts (drug supply, other offences): fixed terms ranging from 6 months to 2 years, with adjusted commencement and expiry dates
Key Takeaways
- The Court of Criminal Appeal confirmed that verdicts supported by tendency evidence from multiple complainants are not automatically unsafe, provided the jury directions meet the required standard.
- Where a trial judge's directions on tendency evidence are challenged on appeal, the Court will examine whether the directions were adequate to assist the jury in properly applying that evidence, rather than treating any imperfection as automatically vitiating the verdicts.
- The abolition of a criminal offence is a relevant mitigating factor at sentencing for conduct occurring before the repeal, particularly where the legislative change reflects a policy decision that the conduct in question should no longer attract criminal sanction.
- In sentencing for offences under s 78K of the Crimes Act 1900 (sexual intercourse with a male aged between 10 and 18), courts are required to take into account that the provision was repealed in 2003 when the age of consent for males was lowered from 18 to 16.
- Appellate intervention on sentence is available where the structure or totality of sentences, including commencement dates, produces a result that is disproportionate, even where individual sentences might otherwise fall within an acceptable range.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), ss 61I, 61L, 61M, 66C, 78K
- Drug Misuse and Trafficking Act 1985 (NSW), ss 23, 25
- Evidence Act 1995 (NSW), s 98
- Criminal Appeal Act 1912 (NSW)
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Interpretation Act 1987 (NSW)
Cases:
- Anaout v R (2008) NSWCCA 278
- Dodds v R (2009) NSWCCA 78
- Papakosmas v The Queen (1999) 196 CLR 297
- R v Abusafiah (1991) 24 NSWLR 531
- R v Hartikainen (NSWCCA, unreported, 8 June 1993)
- R v MJR [2002] NSWCCA 129; (2002) 54 NSWLR 368
- R v Pritchard [1999] NSWCCA 182; 107 A Crim R 88
- R v Shore (1992) 66 A Crim R 37
- Rowney v R (2007) 168 A Crim R 579