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Court of Criminal Appeal 17 May 2011

Monteiro v R; R v Monteiro

[2011] NSWCCA 113

Sexual offencesAssault & violenceTheft & propertyPublic order & justice offences
CRIMINAL LAW PARTICULAR OFFENCES OFFENCES AGAINST THE PERSON SEXUAL OFFENCES AGGRAVATED SEXUAL ASSAULT S 61J CRIMES ACT 1900

Citation: Monteiro v R; R v Monteiro [2011] NSWCCA 113
Court: Court of Criminal Appeal, New South Wales
Date: 17 May 2011
Judge(s): Simpson J (with Hoeben J and Price J agreeing)

Background

The appellant was convicted by a jury in the District Court of aggravated sexual assault under s 61J of the Crimes Act 1900, the aggravation being that he inflicted actual bodily harm on the complainant immediately before the sexual intercourse. He had pleaded guilty separately to two property offences: malicious damage and stealing. The offences arose from events in early January 2008, following a tumultuous domestic relationship during which the complainant alleged persistent physical and sexual abuse, including threats against her and her family.

At sentencing, the District Court imposed a sentence of 11 years (non-parole period of 6 years and 6 months) for the sexual assault, accumulated on sentences for the property offences, producing a total effective sentence of 12 years and 3 months with a non-parole period of 7 years and 9 months.

Three appeals came before the Court of Criminal Appeal: the appellant's appeal against conviction, the appellant's application for leave to appeal against sentence severity, and the Crown's appeal asserting the sentence for the sexual assault was manifestly inadequate.

  • Whether the jury's guilty verdict was unreasonable or unsupported by the evidence, having regard to the complainant's credibility and the plausibility of her account
  • Whether trial counsel's conduct, including alleged failures to follow instructions and absence of cross-examination on certain matters, resulted in a miscarriage of justice
  • Whether the sentences for the sexual assault and malicious damage were manifestly excessive
  • Whether the sexual assault sentence was manifestly inadequate, as argued by the Crown
  • Whether the sentencing judge erred in finding no causal relationship between the appellant's mental illness and the offences, and in finding the offences were committed while the appellant was on conditional liberty

Decision

Conviction appeal: unreasonable verdict. The Court examined the evidence led at trial, including the complainant's account of a sustained pattern of abuse and the events of 2 January 2008. Applying the principles from M v The Queen and MFA v The Queen, the Court found the jury's verdict was open on the evidence. The complainant's account, while challenged, was not so implausible that no reasonable jury properly instructed could have accepted it. The first ground was dismissed.

Conviction appeal: counsel's conduct. Because the appellant alleged that his trial solicitor-barrister had failed to follow explicit instructions in several respects, including on cross-examination and the decision not to call the appellant as a witness, the Court took the unusual step of hearing evidence over three days. Having considered the evidence of the appellant, trial counsel, and counsel's former employed solicitor, the Court found that counsel's decisions reflected the exercise of legitimate forensic judgment rather than incompetence or defiance of clear instructions. No miscarriage of justice was established, and the second ground was also dismissed.

Appellant's sentence appeal. The Court identified two errors by the sentencing judge: finding there was no causal relationship between the appellant's mental illness and the commission of the sexual assault (contradicted by expert evidence), and finding that the offences were committed while the appellant was on conditional liberty (which was not the case). Both errors were capable of aggravating the sentence, and both had therefore operated in a manner unfavourable to the appellant at first instance. Despite these errors, the Court concluded the sentences remained within the available range and were not manifestly excessive. Leave to appeal was granted, but the appeal was dismissed.

Crown appeal: manifest inadequacy. The Crown argued the sentence was manifestly inadequate given the objective seriousness of the conduct, which the sentencing judge had placed at the "cusp" of mid-range seriousness. The Court accepted that, absent the identified errors, a sentence closer to the standard non-parole period of 10 years may well have been imposed. However, the two errors both operated in the appellant's favour on appeal. Taking into account the finding of special circumstances (which justified a modest downward departure from the standard non-parole period) and the causal relationship between the mental illness and the offending, the Court concluded that the reduction, while generous, did not warrant appellate intervention. The Crown appeal was dismissed.

Orders Made

  • Appeal against conviction dismissed
  • Leave to appeal against sentence granted; appeal dismissed
  • Crown appeal dismissed

Key Takeaways

  • Where a sentencing judge makes factual errors that, had they been correctly resolved, would have increased the sentence, an appellate court may decline to intervene on a Crown appeal if correcting the errors would only have benefited the applicant below and the ultimate sentence is not manifestly inadequate.
  • A conviction will not be set aside as unreasonable merely because the complainant's account was contested or subject to attack on credibility grounds; the test remains whether the verdict was one that no reasonable jury could have returned on the whole of the evidence.
  • Alleged failures by trial counsel to follow instructions do not automatically constitute a miscarriage of justice. The Court of Criminal Appeal confirmed that decisions about cross-examination and the calling of witnesses fall within the proper exercise of forensic judgment, provided counsel has not clearly departed from explicit and unambiguous instructions in a way that affects the trial's fairness.
  • Taking evidence from trial counsel during a conviction appeal is an unusual step, but the Court proceeded to do so here given the seriousness of the appellant's allegations, demonstrating the Court's willingness to examine such claims rigorously on their merits.
  • Under s 44(2) of the Crimes (Sentencing Procedure) Act 1999, a finding of special circumstances justifies departure from standard non-parole period proportions; the Crown's challenge here was to the extent of that departure, but the Court found it insufficient to warrant interference.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 59(1), 61J, 117, 195(1)(a)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 44(2)
- Criminal Appeal Act 1912 (NSW), s 5D

Cases
- M v The Queen [1994] HCA 63; 181 CLR 487
- MFA v The Queen [2002] HCA 53; 213 CLR 606
- TKWJ v The Queen [2002] HCA 46; 212 CLR 124
- Mickelberg v The Queen [1989] HCA 35; 167 CLR 259
- Hili v The Queen [2010] HCA 45
- R v Gallagher [1986] HCA 26; 160 CLR 392
- R v Way [2004] NSWCCA 131; 60 NSWLR 168
- R v Birks (1990) 19 NSWLR 677
- R v Engert (1995) 84 A Crim R 67
- R v Abou-Chabake [2004] NSWCCA 356; 149 A Crim R 417
- R v Ashton [2002] NSWCCA 498; 137 A Crim R 73
- R v Hemsley [2004] NSWCCA 228
- R v Kertebani; Kertebani v R [2010] NSWCCA 221
- R v Willard [2001] NSWCCA 6; 120 A Crim R 450
- R v Ehrenburg (NSWCCA, 14 December 1990, unreported)
- R v Smith [1987] 44 SASR 587