Citation: MAJW v Regina [2009] NSWCCA 255
Court: NSW Court of Criminal Appeal
Date: 14 October 2009
Judge(s): Macfarlan JA, Howie J, Hislop J
Background
The appellant was convicted in the District Court in November 2006 on 14 counts arising from serious sexual offences committed against his step-daughter, who was between 11 and 14 years old at the time. The offences included aggravated sexual intercourse, aggravated indecent assault, and producing child pornography. The complainant had believed the appellant to be her biological father until shortly before his arrest.
The defence at trial centred on the proposition that the complainant had fabricated her allegations, pointing to a range of suggested grievances she held against the appellant. These included changes in the family's financial circumstances, school changes, and discipline issues. The complainant rejected all of those suggestions.
The appellant was sentenced to an aggregate of 10 years and 8 months with an effective non-parole period of 9 years. He appealed against both the conviction and the sentence.
Legal Issues
- Whether the Crown Prosecutor's final address improperly invited the jury to speculate about why the complainant would have a motive to lie, effectively shifting the burden to the accused to establish such a motive.
- Whether the Crown Prosecutor's final address or cross-examination improperly invited the jury to discount the appellant's evidence because of his personal interest in being acquitted.
- Whether the non-parole period of approximately 84 percent of the total sentence was excessive.
- Whether the sentencing judge erred in failing to find special circumstances that would justify a different ratio between the non-parole period and the balance of the sentence.
- Whether the discount allowed for the appellant's assistance to authorities was inadequate.
Decision
The Court dismissed the conviction appeal. It found that the Crown Prosecutor's address, properly read, did not impermissibly invite the jury to require the accused to establish a motive for the complainant to lie, nor did it improperly invite the jury to discount the appellant's evidence solely because he had an interest in the outcome. The Court considered the impugned passages in context and concluded that any problematic aspects did not give rise to a miscarriage of justice, particularly given the directions given by the trial judge.
On the cross-examination ground, the Court examined whether questions put to the appellant about his interest in the outcome crossed the line into an improper suggestion that his evidence should be disbelieved because of that interest alone. The Court did not find that the cross-examination caused a miscarriage.
On sentence, the Court upheld the overall sentencing structure but found error in the non-parole period fixed for the counts relating to aggravated sexual intercourse with a child between 10 and 14 years. The non-parole period for those counts was reduced from 5 years to 4 years, addressing the disproportion identified between the non-parole period and the total term. The total sentence remained unchanged.
On the issue of the discount for assistance, the Court found that a 30 percent discount for assistance of "a very high order" was within the range reasonably open to the sentencing judge. Notably, because the appellant had not pleaded guilty, the discount was for assistance alone and was not a composite discount incorporating a guilty plea component. The Court declined to interfere with that exercise of discretion.
Orders Made
- Appeal against conviction dismissed.
- Leave to appeal against sentence granted.
- The non-parole period for counts six, seven and eight varied from 5 years to 4 years, commencing 28 March 2010 and expiring 27 March 2014; the appellant becomes eligible for parole on 27 March 2014.
- No change to the total sentence, which expires 27 November 2016.
Key Takeaways
- A Crown Prosecutor's final address will not automatically cause a miscarriage of justice merely because it touches on the absence of an established motive for the complainant to lie, provided it does not improperly shift the burden of proof to the accused.
- Cross-examination suggesting an accused has a personal interest in the outcome of proceedings will not constitute a miscarriage where the questioning does not, in context, invite the jury to disbelieve the accused solely on that basis.
- Where a non-parole period is disproportionate to the overall sentence, an appellate court may reduce the non-parole period without disturbing the total term.
- Discounts for assistance to authorities are assessed independently of any guilty plea discount; where no plea is entered, the discount reflects assistance alone and is not a composite figure.
- Appellate intervention in a sentencing judge's discretionary assessment of a discount for assistance requires demonstration of error in approach or a result that is unreasonable or plainly unjust, consistent with the principles in House v The King.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), ss 61M(1), 66C(2), 66C(4), 91H(2), 100
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Evidence Act 1995 (NSW)
Cases:
- Brown v R [2008] NSWCCA 306
- DOE v R [2008] NSWCCA 203
- House v The King [1936] HCA 40; (1936) 55 CLR 499
- Palmer v The Queen [1998] HCA 2; (1998) 193 CLR 1
- Ramey v The Queen (1994) 68 ALJR 917
- R v Attard [2004] NSWCCA 376
- R v Booty NSWCCA (19 December 1994, unreported)
- R v Henry [2004] NSWCCA 306
- R v Lenati [2008] NSWCCA 67
- R v MAJW [2007] NSWCCA 145; (2007) 171 A Crim R 407
- R v Sukkar [2006] NSWCCA 92; (2006) 172 A Crim R 151
- R v Swan [2005] NSWCCA 252
- Robinson v The Queen [1991] HCA 38; (1988-1989) 180 CLR 531
- S v R [2008] NSWCCA 186
- South v R [2007] NSWCCA 117
- Stafford v The Queen (1993) 67 ALJR 510