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Court of Criminal Appeal 26 February 2009

OCEK v R

[2009] NSWCCA 42

Sexual offences
CRIMINAL LAW AGGRAVATED SEXUAL ASSAULT APPEAL AGAINST SENTENCE SENTENCE NOT IN ERROR

Citation: OCEK v R [2009] NSWCCA 42
Court: Court of Criminal Appeal, New South Wales
Date: 26 February 2009
Judge(s): McClellan CJ at CL, James J, Adams J

Background

The appellant was convicted in the District Court in March 2004 on two counts of aggravated sexual assault under s 61J of the Crimes Act 1900, both arising from a single incident in April 2002. The offences involved threatening the victim with a knife and assaulting her causing actual bodily harm. The sentencing judge imposed an effective total sentence of eight years and six months' imprisonment, with a non-parole period of six years and six months.

The appellant filed a notice of intention to appeal against sentence in July 2004, but the application was not ultimately filed until August 2008, well outside the extended time limits granted by the Registrar. The Court of Criminal Appeal was therefore required to consider whether to grant leave to proceed out of time, in addition to the substantive appeal grounds.

On the appeal, the appellant sought to tender fresh evidence, specifically an expert pharmacological report addressing the effects of a prescribed drug (Rivotril) combined with alcohol and cannabis on the night of the offences. The Crown opposed admission of that material.

  • Whether leave to appeal out of time should be granted, given the substantial delay in filing
  • Whether fresh expert evidence concerning the effects of Rivotril on the appellant's conduct should be admitted as relevant and cogent mitigating material
  • Whether the sentencing judge erred in her assessment of the appellant's remorse
  • Whether the sentencing judge adequately took into account the appellant's intoxication as a mitigating factor
  • Whether the overall sentence was manifestly excessive

Decision

Adams J (with whom McClellan CJ at CL and James J agreed) granted leave to appeal out of time, accepting that the delay was attributable to the inefficiency of the appellant's legal representatives rather than to the appellant himself.

On the fresh evidence question, the Court rejected the expert pharmacological report. While the report was considered relevant, it was found not to be cogent. The expert acknowledged that Rivotril had effects consistent with those the appellant described, but was unable to establish that the drug was in fact responsible for his behaviour in the circumstances. Without that causal link, the evidence did not carry sufficient weight to justify reducing the sentence.

The Court upheld the sentencing judge's finding that the appellant's expressions of remorse were, in context, heavily qualified by blame-shifting and self-justification. The pre-sentence report and the psychologist's report both reflected an at best partial acceptance of responsibility, and Her Honour's scepticism about the genuineness of the remorse was described as entirely reasonable.

On the remaining grounds, the Court found no error. The sentencing judge had noted the intoxication but was entitled to treat it as a matter of limited mitigating weight in the circumstances. The submission that the judge had underestimated the criminality of the offences was rejected, as was the manifest excess ground, with the Court finding the sentences well within the sentencing discretion available.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • Fresh evidence tendered on a sentence appeal must be both relevant and cogent. Relevant pharmacological evidence that cannot establish a causal link between a drug's effects and the offending conduct will not meet the cogency threshold required for admission.
  • A sentencing judge is entitled to find that expressions of remorse are feigned or insufficient where the surrounding material reveals persistent blame-shifting, denial of elements of the offence, or self-justification.
  • Intoxication as a mitigating factor carries limited weight where the offender's background and psychological profile undermine any suggestion that the conduct was out of character.
  • In dismissing the manifest excess ground, the Court of Criminal Appeal confirmed that a sentence within the statistical range identified by the Judicial Commission will not ordinarily be disturbed absent identifiable error in the approach taken by the sentencing judge.
  • Delay in filing an appeal attributable to the inefficiency of legal representatives, rather than to the appellant personally, may be sufficient grounds for the court to grant an extension of time to proceed.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 61J (aggravated sexual assault; maximum penalty 20 years' imprisonment)

Cases: No cases were cited in the provided text of the judgment.