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Court of Criminal Appeal 14 July 2011

Ollis v R

[2011] NSWCCA 155

Sexual offences
CRIMINAL LAW CONVICTION APPEAL SENTENCE APPEAL

Citation: Ollis v R [2011] NSWCCA 155
Court: NSW Court of Criminal Appeal
Date: 14 July 2011
Judges: Macfarlan JA, Johnson J, Garling J

Background

The appellant was convicted in the District Court on four charges arising from events on 4 September 2005 at Central Station and on a train departing Sydney. The charges were: unlawful detention with intent to obtain a sexual advantage (Count 1), and three counts of sexual intercourse without consent (Counts 2, 3 and 4). The complainant was a 17-year-old Japanese student with limited English who was travelling to Bathurst to commence high school.

The complainant gave evidence that the appellant approached her on the platform, helped with her luggage, and then made unsolicited sexual remarks before forcing her into a train toilet where the offences occurred. The appellant was sentenced to a total effective sentence of six years' imprisonment with an effective non-parole period of five years and six months, representing approximately 92% of the aggregate total sentence.

The appellant appealed both his convictions and the severity of the sentences imposed.

  • Whether the jury's verdicts were unreasonable or could not be supported having regard to the evidence, under s 6(1) of the Criminal Appeal Act 1912
  • Whether alleged inconsistencies in the complainant's evidence and contradictions with other evidence were sufficient to undermine the convictions
  • Whether the fact that the trial judge and Crown prosecutor had considered giving a Prasad direction (a direction allowing the jury to acquit without hearing further evidence, derived from R v Prasad) assisted the appellant on appeal
  • Whether the sentencing judge erred by failing to make findings as to the objective seriousness of the offences and by failing to give adequate reasons for setting a non-parole period that exceeded the statutory ratio under s 44(2) of the Crimes (Sentencing Procedure) Act 1999

Decision

Conviction appeal: The Court applied the test from M v The Queen (1994) 181 CLR 487 as restated in SKA v The Queen [2011] HCA 13, asking whether it was open to the jury, on the whole of the evidence, to be satisfied beyond reasonable doubt that the appellant was guilty. The Court conducted an independent assessment of the evidence and found that, notwithstanding alleged inconsistencies in the complainant's account, it was open to the jury to convict. The conviction appeal was dismissed.

The Court also rejected the submission that the trial judge's and Crown prosecutor's apparent willingness to consider a Prasad direction assisted the appellant. Those opinions did not bind the Court of Criminal Appeal in its own independent assessment of the evidence.

Sentence appeal: The Court found error in the sentencing judge's approach to the non-parole period. The effective non-parole period of five years and six months represented approximately 92% of the total aggregate sentence, substantially exceeding the three-quarters ratio contemplated by s 44(2) of the Crimes (Sentencing Procedure) Act 1999. The sentencing judge had failed to give adequate reasons for departing from the standard ratio to that extent.

The Court reduced the effective non-parole period by six months, bringing it to five years against a total sentence of six years, representing 83% of the aggregate sentence. The Court rejected the separate ground that the sentences were manifestly excessive.

Orders Made

  • Leave to appeal against conviction granted; conviction appeal dismissed
  • Leave to appeal against sentence granted
  • The sentence on Count 1 (fixed term of 12 months) varied to commence on 11 December 2013 and expire on 10 December 2014
  • The earliest date upon which the appellant is eligible for release on parole is 11 December 2014

Key Takeaways

  • In dismissing the conviction appeal, the Court of Criminal Appeal confirmed that it must conduct an independent assessment of the sufficiency and quality of evidence under s 6(1) of the Criminal Appeal Act 1912, not merely ask whether there was some evidence capable of supporting the verdict.
  • A Prasad direction reflects a procedural mechanism available at trial; the fact that such a direction was considered does not in itself constitute evidence of evidential insufficiency for the purposes of a subsequent conviction appeal.
  • Under s 44(2) of the Crimes (Sentencing Procedure) Act 1999, a sentencing court that sets a non-parole period departing significantly from the three-quarters ratio must provide adequate reasons for that departure.
  • Failure to make express findings about the objective seriousness of offences, combined with failure to reason through the non-parole period calculation, can constitute identifiable sentencing error warranting appellate intervention.
  • An aggregate non-parole period of approximately 92% of the total sentence was reduced to 83% on appeal, with the Court emphasising that a meaningful balance of term is required to allow a realistic period of conditional liberty on parole.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 44(2)
- Criminal Appeal Act 1912 (NSW), ss 5(1), 6(1)

Cases:
- SKA v The Queen [2011] HCA 13
- M v The Queen [1994] HCA 63; (1994) 181 CLR 487
- R v Prasad (1979) 23 SASR 161
- Markarian v The Queen [2005] HCA 25; 228 CLR 357
- R v Simpson [2001] NSWCCA 534; 53 NSWLR 704
- R v Way [2004] NSWCCA 131; 60 NSWLR 168
- Briggs v R [2010] NSWCCA 250
- Clarke v R [2009] NSWCCA 49
- Ali v R [2010] NSWCCA 35
- Corby v R [2010] NSWCCA 146
- HJWG v R [2011] NSWCCA 50
- Mohamed v R [2008] NSWCCA 45
- Perrin v R [2006] NSWCCA 64
- R v Dunn [2004] NSWCCA 346
- R v McEvoy [2010] NSWCCA 110
- Russell v R [2010] NSWCCA 248