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11
Court of Criminal Appeal 25 August 2009

GSH v R ; R v GSH

[2009] NSWCCA 214

Sexual offences
CRIMINAL LAW AGGRAVATED INDECENT ASSAULT TIME OF THE ESSENCE QUALITY OF INTERVIEW PROCESS MANIFEST INADEQUACY.

Citation: GSH v R; R v GSH [2009] NSWCCA 214
Court: NSW Court of Criminal Appeal
Date: 25 August 2009
Judge(s): Giles JA, Howie J, Latham J

Background

The appellant was convicted in the District Court on three counts of aggravated indecent assault under s 61M(2) of the Crimes Act 1900, each carrying a maximum of 10 years imprisonment and a standard non-parole period (the minimum time the legislature expects an offender to serve before becoming eligible for parole) of 8 years. The offences involved a nine-year-old complainant and were alleged to have occurred on a single day at a family gathering in February 2006. The appellant was acquitted on a separate count of sexual intercourse with a child under 10.

The complainant's evidence at trial consisted of three video-recorded interviews conducted over several weeks, together with cross-examination. Those interviews occurred approximately three months after the alleged assaults. The appellant was sentenced in the District Court to an aggregate non-parole period of 4 years and 3 months.

The appellant appealed his conviction, arguing the verdicts were unreasonable and unsupported by the evidence. The Crown separately appealed the sentence as manifestly inadequate and identified three specific errors in the sentencing process.

  • Whether the verdicts were unreasonable or unsupported by the evidence, given inconsistencies in the complainant's accounts across three interviews
  • Whether inconsistencies as to the date of the offences, given that time was of the essence in the charges, raised a reasonable doubt
  • Whether the quality of the interview process affected the reliability of the complainant's evidence
  • Whether the sentencing judge applied the correct standard non-parole period
  • Whether it was an error to impose a fixed term (a sentence with no parole component) on a count that carried a standard non-parole period
  • Whether the aggregate sentence was manifestly inadequate

Decision

Conviction appeal dismissed. The Court found that inconsistencies in the complainant's accounts across the three interviews did not render the verdicts unreasonable. The complainant was nine years old, and the interviews took place three months after the events. The Court assessed the quality of the interview process and, applying the principles from M v The Queen and MFA v The Queen, was not persuaded that the jury, acting reasonably, must have had a doubt about whether the offences occurred as charged. The evidence, taken as a whole, was sufficient to support the verdicts.

Crown appeal allowed. The sentencing judge made three identifiable errors. First, the judge applied an incorrect standard non-parole period to count 2. Second, a fixed term was imposed on count 4, which was an error because that offence carried a standard non-parole period and therefore required both a non-parole period and a balance of term. Third, the accumulation of count 4 on the other sentences by only three months failed to reflect the totality of the respondent's criminality.

The Court noted that the aggregate non-parole period resulting from the original sentences was little more than half the standard non-parole period for a single offence. Even accounting for the fact that all offences occurred in one day and applying the constraints on intervention in Crown appeals, the Court concluded the aggregate sentence fell so far short of what was warranted that re-sentencing was required.

On re-sentencing, the Court imposed a non-parole period of 5 years on count 2, with counts 1 and 4 attracting non-parole periods of 2 years and 6 months each. The Court found no basis for a finding of special circumstances (which would allow the parole period to be extended beyond the standard ratio), and the respondent's subjective circumstances offered no basis for reducing the sentence below what the standard non-parole period scheme required.

Orders Made

  • Conviction appeal dismissed
  • Crown sentence appeal allowed
  • Original sentences set aside
  • Count 1 and count 4: non-parole period of 2 years and 6 months each, dating from 19 March 2007, expiring 18 September 2009, with a balance of term of 10 months expiring 18 July 2010
  • Count 2: non-parole period of 5 years, dating from 19 March 2008, expiring 18 March 2013, with a balance of term of 18 months expiring 17 September 2014
  • Respondent eligible for release on 19 March 2013

Key Takeaways

  • Inconsistencies in a young child complainant's accounts across multiple interviews do not automatically render verdicts unreasonable; the Court applies the M v The Queen standard and asks whether a jury acting reasonably must have had a doubt, not merely whether doubt was theoretically available.
  • Where time is of the essence in a charge, the complainant's evidence must support the specified date, but minor inconsistencies in a nine-year-old's recollection do not necessarily undermine that requirement if the evidence as a whole supports the verdict.
  • Imposing a fixed term on an offence that carries a standard non-parole period is a legal error; such offences require both a non-parole period and a balance of term.
  • In Crown appeals against sentence, the Court retains a discretion not to intervene even where errors are identified, but that discretion gave way here because the aggregate sentence fell so significantly below what the standard non-parole period scheme required.
  • The three-month accumulation of count 4 on the other sentences was found to be insufficient to reflect the totality of the respondent's criminality, even though all offences occurred on a single day.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 61M(2)
- Crimes (Sentencing Procedure) Amendment Act 2007 (NSW)

Cases:
- M v The Queen (1994) 181 CLR 487
- MFA v The Queen (2002) 213 CLR 606
- Burrell v R [2009] NSWCCA 193
- Zaphir v R [2009] NSWCCA 124
- SKA v R; R v SKA [2009] NSWCCA 186
- R v NZ [2005] NSWCCA 278; (2005) 63 NSWLR 628
- Kershaw v R [2009] NSWCCA 19
- R v Terkmani [2009] NSWCCA 142
- Ivimy v R [2008] NSWCCA 25
- SGJ v R [2008] NSWCCA 258

Note: The High Court dismissed an application for special leave to appeal on 10 March 2010 (S277/2009), leaving this decision undisturbed.