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10
Court of Criminal Appeal 24 March 2010

McGrath v R

[2010] NSWCCA 48

Also reported as (2010) 199 A Crim R 527
Sexual offences
CRIMINAL LAW APPEAL AGAINST CONVICTION CHILD SEXUAL OFFENCES CRIMINAL LAW SENTENCE APPEAL PAROLE PERIODS.

Citation: McGrath v R [2010] NSWCCA 48
Court: NSW Court of Criminal Appeal
Date: 24 March 2010
Judges: Macfarlan JA; Blanch J; Johnson J

Background

The appellant was convicted in the Albury District Court on three counts arising from sexual offences committed against the same complainant, a child aged nine to eleven years, between February 2001 and November 2002. The appellant had been in a relationship with the complainant's mother and frequently stayed at the family home. Counts 1 and 3 charged aggravated sexual assault under s 61J of the Crimes Act 1900, requiring proof of sexual intercourse without consent and knowledge of that non-consent. Count 2 charged indecent assault under s 61M(2).

At trial, the defence case was that no sexual assault occurred at all, and that the complainant was motivated by hatred of the appellant. The appellant was convicted on all three counts and sentenced to an effective term of fourteen and a half years with a non-parole period of ten and a half years.

The appellant appealed against his convictions on Counts 1 and 3, and sought leave to appeal against all three sentences.

  • Whether the trial judge misdirected the jury by instructing it that, because the complainant was under sixteen, it did not need to consider the elements of absence of consent and the appellant's knowledge of that absence of consent, for the s 61J offences
  • Whether, if such a misdirection occurred, the proviso to s 6(1) of the Criminal Appeal Act 1912 applied so that no substantial miscarriage of justice had actually resulted
  • Whether the sentencing judge erred by having regard to standard non-parole periods that, by statute, did not apply to offences committed before 1 February 2003

Decision

Conviction appeal: misdirection conceded but proviso applied

The Crown conceded that the trial judge had misdirected the jury. The judge told the jury that, because the complainant was under sixteen, consent was legally impossible and the jury need not trouble itself with those elements. This was an error: s 61J requires proof that the accused knew the complainant was not consenting, and the jury must be properly directed on that element regardless of the complainant's age.

Despite this concession, the Court dismissed the conviction appeal by applying the proviso to s 6(1) of the Criminal Appeal Act 1912. That proviso allows a conviction to stand where, notwithstanding a legal error, no substantial miscarriage of justice has actually occurred. The Court found that the defence at trial was built entirely on a denial that any sexual acts took place and on the proposition that the complainant fabricated her allegations out of hatred for the appellant. Those submissions were wholly inconsistent with any suggestion of consensual intercourse, leaving the Court satisfied that the misdirection did not deprive the appellant of a real chance of acquittal.

Blanch J added that substituting convictions under s 66A of the Crimes Act (the alternative provision the appellant sought) would not have assisted the appellant, since s 66A carries equal or greater maximum penalties.

Sentence appeal: impermissible reference to standard non-parole periods

The sentence appeal succeeded. The offences were committed between February 2001 and November 2002, predating the commencement of the standard non-parole period regime on 1 February 2003. Clause 45(1) of Schedule 2 to the Crimes (Sentencing Procedure) Act 1999 expressly excluded the standard non-parole period system from applying to offences committed before that date. The Court found the sentencing judge had at least indirectly had regard to the standard non-parole periods, which was impermissible. The only proper course was to observe that those periods had no application and proceed without reference to them.

The Court resentenced the appellant, reducing the effective non-parole period to nine years. While the crimes were described as serious, the Court held that the original sentences were infected by the sentencing error and that a lesser sentence was warranted in law.

Orders Made

  • Appeal against conviction on Counts 1 and 3 dismissed
  • Leave to appeal against sentence granted
  • Original sentences imposed on 5 February 2008 set aside
  • Appellant resentenced as follows:
  • Count 1: Non-parole period of six years from 15 November 2007, expiring 14 November 2013; balance of term of two years expiring 14 November 2015
  • Count 2: Non-parole period of three and a half years from 15 November 2007, expiring 14 May 2011; balance of term of one year expiring 14 May 2012
  • Count 3: Non-parole period of five and a half years from 15 May 2011, expiring 14 November 2016; balance of term of three years expiring 14 November 2019

Key Takeaways

  • A conviction under s 61J of the Crimes Act 1900 requires the jury to be properly directed on both the absence of the complainant's consent and the accused's knowledge of that absence, even where the complainant is below the age of sixteen. The complainant's age alone does not dissolve those elements.
  • Where a misdirection deprives the jury of a direction on a formal element of the offence, the Court of Criminal Appeal may nonetheless apply the proviso under s 6(1) of the Criminal Appeal Act 1912 and decline to set aside the conviction if it is satisfied no substantial miscarriage of justice occurred in the circumstances of the particular trial.
  • Sentencing courts are bound to sentence in accordance with the law as it stood at the time the offences were committed. Where statute expressly excludes a subsequent regime from applying to earlier offences, any regard to that regime constitutes legal error.
  • The standard non-parole period provisions introduced in February 2003 have no application to offences under s 61J or s 61M(2) committed before that date, and the sentencing court must not refer to or reason by analogy with those periods in such cases.
  • In reassessing sentences for serious child sexual offences predating the standard non-parole period regime, the Court of Criminal Appeal applied the pre-regime sentencing approach confirmed in R v AEM, which had already signalled that sentences for s 61J offences should trend upward from previously lenient levels.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 61J, 61M(2), 66A
- Crimes (Sentencing Procedure) Act 1999 (NSW), Schedule 2, cl 45(1)
- Criminal Appeal Act 1912 (NSW), ss 6(1), 6(3)
- Misuse of Drugs Act 1981 (WA)

Cases
- Doja v R [2009] NSWCCA 303
- Krakouer v The Queen [1998] HCA 43; (1998) 194 CLR 202
- MAJW v R [2009] NSWCCA 255
- Orkopolous v R [2009] NSWCCA 213
- R v AEM [2002] NSWCCA 58
- R v Gulliford [2004] NSWCCA 338; (2004) 148 A Crim R 558
- R v MJR [2002] NSWCCA 129; (2002) 54 NSWLR 368
- R v Moon [2000] NSWCCA 534; (2000) 117 A Crim R 497
- R v Pritchard [1999] NSWCCA 182; (1999) 107 A Crim R 88
- R v Simpson [2001] NSWCCA 534; (2001) 53 NSWLR 704
- Wilde v The Queen [1988] HCA 6; (1987-1988) 164 CLR 365