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23
Court of Criminal Appeal 29 November 2010

Jiang v R

[2010] NSWCCA 277

Sexual offences
CRIMINAL LAW APPEAL AND NEW TRIAL PARTICULAR GROUNDS OF APPEAL MISDIRECTION AND NON DIRECTION CRIMINAL LAW

Citation: Jiang v R [2010] NSWCCA 277
Court: New South Wales Court of Criminal Appeal
Date: 29 November 2010
Judge(s): Simpson J, Hoeben J, R A Hulme J

Background

The appellant, a Chinese national working as a masseur at Bondi Beach, was convicted in the District Court before King DCJ and a jury of one count of indecent assault and two counts of sexual intercourse without consent under the Crimes Act 1900. The offences were alleged to have occurred on 14 October 2008 during a massage attended by a French backpacker.

The complainant gave evidence that the appellant touched her genitals, sucked her nipple, and penetrated her vagina with his finger during the massage. The appellant was sentenced to a fixed term of six months for the indecent assault, subsumed within concurrent two-year sentences with 18-month non-parole periods for each count of sexual intercourse without consent.

The appellant appealed against conviction and sought leave to appeal against sentence on three grounds: an alleged misdirection regarding uncharged acts, an alleged error in the trial judge's comment that certain prosecution evidence was unchallenged, and the failure to find special circumstances under the Crimes (Sentencing Procedure) Act 1999.

  • Whether the trial judge was required to direct the jury against substituting evidence of uncharged acts for the conduct underlying the charged offences
  • Whether the trial judge erred in commenting that certain prosecution evidence had not been challenged or contradicted
  • Whether the sentences imposed were manifestly excessive
  • Whether the trial judge erred in declining to find special circumstances, which would have justified reducing the non-parole period below the standard proportion

Decision

On the conviction appeal, the Court considered whether the trial judge's directions adequately addressed the risk that the jury might substitute evidence of uncharged conduct (such as the massaging of breasts and earlier touching near the anus) for the specific acts underpinning the charges. The Court found no error warranting intervention on this ground.

The Court also examined the trial judge's comment that certain prosecution evidence had not been challenged or contradicted. The evidence in question related to the complainant's account of events following the massage, including her conversation with a witness and her distressed state. The Court concluded that this comment, in its proper context, did not constitute a material misdirection capable of affecting the verdict.

On sentence, the Court rejected the contention that the sentences were manifestly excessive. Judicial Commission statistics indicated that the vast majority of offenders sentenced for offences under s 61I of the Crimes Act received full-time custodial terms, and that most received sentences exceeding two years. The sentences imposed were described as sitting in the low range. The non-parole periods of 18 months already represented a significant departure from the standard non-parole period of seven years applicable to those offences.

Regarding special circumstances, the Court noted that the appellant's counsel at first instance had not made a submission to that effect, and the trial judge had explicitly turned his mind to the issue and found none existed. The Court of Criminal Appeal confirmed it is slow to intervene in such findings, which are discretionary findings of fact. No error of the kind described in House v The King was established.

Orders Made

  • Appeal against conviction dismissed
  • Application for leave to appeal against sentence refused

Key Takeaways

  • A finding of special circumstances under s 44 of the Crimes (Sentencing Procedure) Act 1999 is a discretionary finding of fact, and the Court of Criminal Appeal will intervene only where error of the kind described in House v The King is demonstrated.
  • In dismissing the conviction appeal, the Court confirmed that a misdirection will not ground a successful appeal unless it was capable of affecting the outcome of the trial.
  • Where a trial judge's comment about unchallenged evidence is assessed in its full context and found not to have constituted a material misdirection, no appellate error arises.
  • Sentencing statistics from the Judicial Commission, while of limited utility in isolation, can inform whether sentences fall within an acceptable range; here they supported a conclusion that two-year terms for sexual intercourse without consent were at the lower end of the range.
  • No error was established in the trial judge's refusal to find special circumstances, notwithstanding that the appellant was a first-time custodial offender with language difficulties and limited family support in Australia.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 61I, 61L
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 44
- Criminal Appeal Rules
- Evidence Act 1995 (NSW)

Cases
- House v The King [1936] HCA 40; 55 CLR 499
- Clarke v R [2009] NSWCCA 49
- LJW v R [2010] NSWCCA 114
- Mulato v R [2006] NSWCCA 282
- O'Leary v The King [1946] HCA 44; 73 CLR 566
- Quayle v R [2010] NSWCCA 16
- Qualtieri v R [2006] NSWCCA 95; 171 A Crim R 463
- R v Adam [1999] NSWCCA 189; 106 A Crim R 510
- R v ATM [2000] NSWCCA 475
- R v Baldwin [2004] NSWCCA 21
- R v Cramp [2004] NSWCCA 264
- R v Dixon [2001] NSWCCA 39
- R v El-Hayek [2004] NSWCCA 25; 144 A Crim R 90
- R v Li [2010] NSWCCA 125
- R v Qin [2008] NSWCCA 189
- RPS v The Queen [2000] HCA 3; 199 CLR 620
- Toalepai v R [2009] NSWCCA 270